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ROBERT  WILBUR  STEELE 

DEFENDER  OF  LIBERTY 


BY 
WALTER  LAWSON  WILDER 


"Nature  doth  nothing  so  great  for  great  men, 
As  when  she's  pleased  to  make  them  lords  of  truth; 
Integrity  of  life  is  Fame's  best  friend 
Which  nobly,  beyond  death  shall  crown  the  end." 

— John  Webster. 


DENVER.   COLORADO 

19  13 


Mtmaxlni  ^h'liXon 


Of  this  edition  there  have  been  printed 
200  copies,  of  which  this  is 

No. 


/ 


Copyright.  1913.  by 
MRS.  ROBERT  W.  STEELE 


To  THE  Young  Men  of  the  West 

who  have  faith  in  an  American  ideal  of  democracy 

and  who  measure  Life  by  the  standards  of 

Integrity,  Unselhshness  and  Patriotism, 

IN    MEMORY 

of  one  who  followed  faithfully 

along  the  paths  they  seek  to  tread, 

this  book  is  dedicated. 


■C 


v-«'_i;.07W 


CONTENTS 

chapter  page 

Preface       7 

I    The  Peaceful  Revolution 9 

II    The  Makers  of  the  Machine 18 

III  In  Life's  Morning 31 

IV  The  Builders 49 

V    The  Tribunal  of  the  People 67 

VI     Unofficial  Opinions  and  Activities 86 

VII     The  Right  of  Personal  Liberty 102 

VIII     The  Opinion  in  the  Mover  Case 119 

IX     Free  Speech  and  a  Free  Press 157 

X    The  Opinion  in  the  Patterson  Case 168 

XI     The  Right  of  Free   Elections  and  the  Decision  in 

the  Tool  Case 218 

XII     The  Right  of  Popular  Self-C;overnment 226 

XIII  The  Decisions  in  the  Rush  Amendment  Cases     .     .  238 

XIV  Opinions  in  Some  Minor  Cases 255 

XV    The  Court  of  Last  Resort 273 

XVI     In  the  Measure  of  Appreciation 282 

XVII     The  Man  Whom  the  People  Loved 300 

Index 319 


LIST    OF    ILLUSTRATIONS 


Robert  Wilbur   Steele Frontispiece 

OPPOSITE 
PAGE 

Dr.  Henry  King  Steele 44 

The  Steele  Memorial  Hospital,  Denver,  Colo 92 

Robert  Wilbur  Steele  (from  photograph,  1883) 12+ 

The  Robert  W.  Steele  School  Building,  Denver,  Colo.     .    .  156 

Robert  Wilbur  Steele  (from  photograph,  1900) 204 

Memorial  Window,  Supreme  Court  Room,  Capitol  Building  252 

The  Robert  Steele  Cabin  .\t  Ward's  Ranch,  White  River 

Valley 300 


PREFACE 

In  presenting  this  sketch  of  the  life  and  work  ot 
my  husband,  my  own  desire  has  been  strengthened 
by  the  solicitation  of  many  of  his  friends. 

The  book  is  not  intended  as  a  complete  biog- 
raphy, but  includes  a  recital  of  the  prominent  events 
connected  with  his  official  life. 

His  character  was  one  ot  such  modesty  and 
simplicity  that  but  an  imperfect  record  can  be 
obtained  concerning  many  of  his  activities,  but 
enough  is  known  to  establish  his  position  perma- 
nently as  a  clear  figure  of  loyalty  and  truth,  the 
champion  and  friend  of  the  people. 

His  purpose  in  all  the  years  of  his  public  life 
was  to  be  of  real  service  to  the  people,  for  whom 
he  labored  untiringly  and  in  whom  he  had  an 
abiding  faith.  He  ever  regarded  himself  as  an 
instrument  to  execute  their  will,  and  he  considered 
his  duty  to  his  state  above  all  else. 

It  is  my  hope  that  his  efforts  for  justice  and 
humanity  shall  be  continued  through  these  pages, 


and  that  young  men  desiring  to  hold  steadfastly  to 
the  highest  ideals  of  citizenship,  and  to  live  a  life 
of  patriotism,  purity  and  honesty,  may  find  inspira- 
tion and  encouragement  from  his  example. 

A.  T.  S. 


ROBERT  WILBUR  STEELE 

DEFENDER  OF  LIBERTY 
CHAPTER  I 

THE  PEACEFUL  REVOLUTION 

"We  are  upon  the  eve  of  a  great  reconstruction.  It  calls  for 
creative  statesmanship  as  no  age  has  done  since  that  great  age  in 
which  we  set  up  the  government  under  which  we  live,  the  govern- 
ment which  was  the  admiration  of  the  world  until  it  suffered  wrongs 
to  grow  up  under  it  which  have  made  many  of  our  own  compatriots 
question  the  freedom  of  our  institutions  and  preach  revolution 
against  them.  I  do  not  fear  revolution.  I  do  not  fear  it  even  if  it 
comes.  I  have  unshaken  faith  in  the  power  of  America  to  keep  its 
self-possession." 

WooDROw  Wilson. 

(Address  before  the  American  Bar  Association,  August  31,  1910.) 

The  first  decade  of  the  twentieth  century  marked  in 
Colorado  a  revolution  in  the  institutions  and  the  practices 
of  government  so  profound  and  so  extensive  that  the  people 
of  this  community,  who  have  lived  through  that  period  of 
change  and  of  strife,  are  even  yet  unaware  of  the  full  extent 
of  its  meaning  and  consequences. 

The  measures  of  progressive  legislation,  as  they  are 
commonly  called,  now  adopted  into  the  fundamental,  con- 
stitutional structure  of  political  organization,  including  the 
direct  primary,  the  perfected  Australian  ballot,  the  initiative, 
referendum  and  recall,  with  the  complete  system  of  munici- 
pal government  collectively  known  as  "the  commission 
plan,"  involve  something  more  than  a  modification  of  the 
political  institutions  that  existed  in  this  state  in  the  closing 
years  of  the  nineteenth  century.     They  constitute,  in  effect 


10  ROBERT    WILBUR    STEELE 

and  in  form,  a  new  instrument  of  government,  recognized 
as  such  both  by  its  opponents  and  its  advocates,  and  admitted 
universally  to  be  the  outcome  of  a  conscious  effort  of  the 
masses  of  the  people  to  secure  a  more  direct  and  a  more 
genuine  measure  of  popular  self  rule.  Yet  these  changes 
of  form  and  practice  have  been  accomplished  without  any 
reversal  of  the  principles  upon  which  free  government  has 
always  rested.  There  has  been  no  change  in  the  ultimate 
ends  for  which  government  is  established  and  maintained  by 
the  free  and  enlightened  people  of  the  world. 

As  a  result  of  the  adoption  of  these  amendments  to 
the  state  constitution,  many  evils  that  seemed  inseparable 
from  the  political  system  have  been  dissected  and  destroyed. 
New  evils,  perhaps,  or  new  dangers,  have  been  introduced, 
but  such  bold  frauds  as  marked  the  development  of  the 
political  machines,  such  persistent  and  insolent  defiance  of 
the  people's  will  as  characterized  the  opposition  to  the 
miners'  eight-hour  law,  such  usurpations  of  unconstitutional 
powers  as  were  the  result  of  the  effort  to  establish  machine 
government  as  the  fruit  of  machine  politics,  cannot  be 
repeated  under  present  conditions.  Already  it  is  hard  to 
realize  that  such  evils  were ;  it  is  increasingly  difficult  to 
understand  how  they  came  to  be  possible. 

The  reaction  in  Colorado  against  existing  political 
forms,  customs  and  institutions,  and  the  popular  determina- 
tion to  regain  control  of  public  affairs  from  those  persons 
whom  the  people  had  come  to  regard  as  usurpers,  was  closely 
connected  with  a  wider  movement  affecting  nearly  every 
American  state.  In  Colorado,  as  elsewhere,  the  development, 
the  incidents,  the  applications,  the  course  and  the  final  extent 
and  results  of  this  movement  were  largely  modified  and 
determined  by  local  conditions.  Each  state  of  the  Union 
has  felt,  in  greater  or  less  degree,  the  symptoms  of  popular 
unrest  and  dissatisfaction.     Each  has  counted  some  amount 


THE    PEACEFUL    REVOLUTION  11 

of  progress  that  has  been  made  in  a  period  of  change  and 
reconstruction.  Each  is  prone  to  assume  that  its  experiences 
have  been  more  wonderful,  more  illuminating,  more  bene- 
ficial than  those  of  other  states.  New  Hampshire,  New 
Jersey,  New  York,  Pennsylvania,  Wisconsin,  Missouri, 
Oregon,  Washington  are  in  the  minds  of  all  men  as  examples 
of  political  progress  in  recent  years,  and  there  is  perhaps  no 
state  in  which  a  careful  search  would  not  disclose  some 
evidence  of  a  similar  movement. 

In  Colorado  the  transition  from  the  old  to  the  new  has 
been  marked  by  events  of  dramatic  intensity  and  of  sensa- 
tional force.  The  strife  of  parties  and  of  factions  has  been 
carried  far  beyond  the  range  of  ordinary  political  contests. 
The  state  has  been  brought  to  the  verge  of  civil  war.  Politi- 
cal discussion  has  been  extended  to  the  ultimate  and  basic 
principles  of  civic  and  social  organization.  If  on  the  one  side 
ancient  and  outworn  dogmas  have  been  summoned  to  sustain 
the  defense  of  positions  hard  pressed  by  the  popular  assault, 
on  the  other  some  of  the  soundest  and  firmest  conclusions 
of  human  experience  have  been  called  in  question,  and  some 
of  the  wildest  of  ancient  follies  have  been  propounded  as 
the  newest  and  best  revelations  of  political  wisdom. 

A  review  of  any  portion  of  the  vast  domain  of  politics 
and  government  in  Colorado  cannot  be  complete  without 
some  consideration  of  those  major  movements  and  influences 
that  have  determined  all  minor  events.  No  consideration 
of  the  part  played  by  any  individual  in  the  public  affairs 
of  this  state  in  recent  years  can  be  reasonable  or  adequate 
without  an  analysis  and  an  understanding  of  the  great 
currents  of  popular  thought  and  feeling  during  that  period. 
This  is  particularly  true  of  one  to  whom  it  was  allotted  to 
stand  in  a  peculiar  and  impressive  manner  as  the  prophet 
of  the  New  Era;  a  man  of  extraordinary  foresight  and 
discernment,  of  judicial  temperament  unswayed  by  all  the 


12  ROBERT    WILBUR   STEELE 

clamor  of  faction  and  the  clash  of  opposing  interests,  of 
unimpeached  and  unimpeachable  personal  integrity ;  a 
statesman  whose  clear  vision  struck  straight  through  the 
sophistries  of  demagogues  on  one  side  and  of  the  hirelings 
of  special  interests  on  the  other,  down  to  those  fundamental 
principles  of  American  popular  government  which,  buried 
for  a  time  under  an  accumulated  mass  of  perversion,  abuse 
and  misunderstanding,  were  always  potential  as  a  living 
source  of  regeneration  and  of  cure  for  political  ills;  a  judge 
whose  only  standard  of  official  duty  was  his  own  clear- 
sighted vision  of  the  eternal  principles  of  Law,  Justice  and 
Humanity,  and  with  whom  the  clamors  of  the  mob  were  as 
ineffective  as  were  the  appeals  to  selfish  ambition  and  per- 
sonal interest  made  by  those  concerned  in  subverting  public 
offices  to  personal  ends — Robert  Wilbur  Steele,  late  chief 
justice  of  the  Supreme  Court  of  Colorado. 

To  no  one  man  can  properly  be  given  the  sole  or  even 
the  main  credit  for  the  reforms  that  have  come  into  the 
politics  and  the  government  of  Colorado  in  recent  years. 
Upon  no  one  man  ought  to  be  imposed  all  the  blame,  either 
for  delay  in  much  needed  change  or  for  the  furtherance  of 
unwise  or  untimely  measures  of  radical  legislation  or  con- 
stitutional amendment.  Yet  in  the  complicated  struggle, 
extending  through  many  years,  involving  every  department 
of  government  and  engaging  the  activities  of  many  men — 
governors,  legislators,  politicians,  writers,  speakers,  and 
leaders  in  every  way  of  public  life — if  any  part  of  the 
contest  is  likely  to  be  overlooked  or  underestimated  it  is 
that  waged  before  the  great  tribunal  that  has  assumed  from 
time  to  time  not  merely  to  declare  the  meaning  of  laws 
written  by  the  representatives  of  the  people,  but  also  to 
determine  the  limits  of  the  power  of  the  people  to  make 
effective  their  will  in  public  affairs.  More  than  once  in 
the  course  of  those  revolutionary  years  the  Supreme  Court 


THE    PEACEFUL   REVOLUTION  I3 

of  Colorado  was  appealed  to  as  the  arbiter  in  disputed 
questions  which  concerned  something  immeasurably  more 
important  than  the  ordinary  issues  of  civil  or  criminal  cases 
and  which,  reaching  down  to  the  very  roots  of  American 
free  government,  involved  the  most  vital  and  primal  prin- 
ciples of  personal  liberty  and  political  freedom. 

It  is  not  surprising  that,  amid  the  peculiar  conditions 
of  Colorado  in  those  years,  the  Supreme  Court  of  the  state — 
which  is  in  its  nature  that  branch  of  the  government  least 
amenable  to  popular  influences — should  have  been  regarded 
by  those  concerned  in  resisting  the  rising  tide  of  progressive 
legislation  as  the  citadel  of  conservatism.  If  it  could  be 
established  as  a  paramount  principle  of  government  that 
this  high  court  was  possessed  of  authority  to  determine  not 
only  the  limitations  of  the  powers  of  the  executive  and 
legislative  departments,  but  also  the  constitutional  restric- 
tions permanently  imposed  upon  the  people  in  deciding  the 
methods  and  in  choosing  the  instruments  of  self  government, 
that  group  of  a  few  men,  elected  for  long  terms  of  office, 
and  limited  by  necessary  qualifications  of  learning,  men- 
tality and  experience  to  a  class  removed  from  the  common 
thoughts  and  impulses  of  the  people,  would  easily  become 
by  far  the  most  powerful  part  of  the  government.  And 
such  a  court,  so  constituted  and  with  such  powers,  stead- 
fastly maintaining  the  deadly  rule,  stare  decisis,  would 
inevitably  be  the  strongest  defense  for  established  wrongs 
and  the  greatest  obstacle  to  progress  and  reform  that  could 
be  devised.  On  the  other  hand,  it  was  early  recognized  by 
the  forces  of  restoration  and  regeneration  that  their  victory 
could  be  complete  and  assured  only  when  this  inner  citadel 
of  government  was  in  the  hands  of  the  people,  not  merely 
by  right  of  temporary  occupation,  but  under  such  conditions 
that  at  all  times  and  under  all  circumstances  it  should  be 
open  to  their  possession  and  control. 


H 


ROBERT    WILBUR    STEELE 


The  fact  that  there  was  in  the  Supreme  Court  of  this 
state  during  the  years  from  1901  to  1910  a  judge  whose 
temperament  and  inclination  were  favorable  to  the  cause  of 
reform,  who  possessed  the  learning  and  the  ability  to  set 
forth  his  statements  of  fundamental  principles  so  clearly, 
so  logically  and  so  authoritatively  that  they  commanded  the 
respect  even  of  those  that  held  contrary  views,  became  under 
such  conditions  a  matter  of  high  historical  significance  and 
of  immeasurable  popular  benefit.  That  those  statements 
were  the  dissenting  opinions  of  a  minority  judge  was  of 
small  importance  compared  with  the  fact,  demonstrated  by 
subsequent  events,  that  they  voiced  both  the  opinion  and  the 
will  of  the  people  of  the  state. 

The  basic  principle  involved  in  these  cases  presented 
for  the  determination  of  the  Supreme  Court  was  the  same 
that  underlay  all  the  other  political  controversies  of  this 
stormy  era.  It  was  the  principle  that  lies  at  the  foundation 
of  the  American  system  and  the  American  ideals  of  govern- 
ment— the  principle  of  the  right  of  the  people  to  govern 
themselves.  This  principle  was  involved  in  the  long  struggle 
against  the  partisan  machines  which  finally  resulted  in  the 
adoption  of  the  direct  primary  and  the  headless  ballot.  It 
was  the  core  of  the  controversy  concerning  the  right  of  the 
executive  to  use  the  military  arm  of  the  government  to 
enforce  a  partisan  view  of  the  facts  and  causes  of  civic 
disturbance  and  lawlessness.  It  was  a  part  of  the  argument 
for  and  against  the  self-government  of  cities  under  the  Rush 
amendment,  which,  when  adopted,  became  the  Twentieth 
article  of  the  state  constitution,  and  from  which  later  the 
power  to  establish  the  "commission  form"  was  derived.  It 
was  concerned  in  that  abuse  of  legislative  power  which, 
beginning  with  the  arbitrary  decision  of  legislative  contests 
upon  partisan  grounds  regardless  of  the  equities  of  each 
case,  culminated  in  the  partially  successful  attempt  to  over- 


THE    PEACEFUL    REVOLUTION  I5 

turn  by  legislative  procedure  the  choice  by  the  people  in  a 
general  election  of  a  governor  of  the  state.  It  lay  back  of 
the  effort  to  put  the  control  of  elections  into  the  hands  of 
the  judiciary,  thereby  removing  from  the  people  the  respon- 
sibility as  well  as  the  power  of  self  rule.  It  prompted 
resistance  to  the  attempt  to  impute  to  the  judges  of  the 
Supreme  Court  a  superior  sanctity  and  an  authority  outside 
of  and  differing  in  quality  from  the  delegated  authority  of 
the  people,  the  only  valid  and  all  sufficient  source  of  legiti- 
mate political  power.  It  was  associated  and  closely  linked 
with  the  nation-wide  movement  for  the  direct  election 
of  United  States  senators,  as  a  measure  of  relief  from  acts 
and  influences  that  had  greatly  increased  the  evils  of  machine 
politics  in  the  state. 

In  a  movement  of  this  kind,  extending  over  many  years 
and  involving  innumerable  controversies,  personalities  and 
events,  very  few  of  the  participants  are  intelligently  con- 
scious of  their  relations  to  each  other  or  to  the  general 
movement  in  which  they  are  engaged.  Each  acts  for  him- 
self, under  the  impulse  of  his  own  interests  or  ideals  and 
of  the  circumstances  by  which  he  is  immediately  surrounded. 
It  is  only  after  the  movement  has  run  its  course,  and  the 
results  of  the  long  continued  process  have  been  balanced 
and  determined,  that  it  is  possible  to  analyze  causes  and 
effects  and  to  resolve  the  complicated  interrelations  of  per- 
sons and  events.  That  is  true  of  the  matters  now  under 
consideration;  yet  even  amid  the  most  confusing  clamor  of 
partisanship  and  selfish  appeal  there  were  some  that  saw 
clearly  both  the  basic  principles  involved  and  the  ultimate 
dangers  that  must  result  if  those  principles  were  violated. 
Nowhere  else  than  in  the  Supreme  Court  could  the  revela- 
tion of  what  lay  beneath  the  surface  of  passing  events  have 
been  made  with  so  great  an  effect,  and  even  there  this  dec- 
laration would  have  failed  of  its  full  force  if  it  had  not 


l6  ROBERT    WILBUR    STEELE 

been  free  from  the  suspicion  of  unworthy  motive,  partisan 
bias  or  improper  influence.  Later  years  brought  the  vindi- 
cation of  Judge  Steele's  opinions  as  the  voice  of  the  people 
of  Colorado,  but  even  while  these  controversies  were  pending 
there  was  never  any  doubt  in  the  minds  of  those  that  knew 
him  that  he  was  standing  for  what  he  believed  to  be  the 
best  interests  of  the  people  of  the  state  and  that  he  was 
performing  conscientiously  the  highest  duty  of  an  upright 
judge  in  declaring,  without  fear  or  favor,  his  honest  opin- 
ions concerning  the  great  principles  that  ought  to  determine 
all  political  controversies  and  to  guide  all  governmental 
activities. 

Judge  Steele's  opinions  upon  the  broad  points  of  public 
policy,  and  his  appreciation  of  fundamental  principles 
involved  in  casual  controversies,  undoubtedly  had  an  impor- 
tant influence  in  the  final  decision  of  these  matters.  His 
powerful  advocacy  and  resolute  defense  of  the  cause  of  the 
people  made  him  one  of  the  foremost  champions  of  the 
forces  of  reform.  But  his  aid  to  progressive  legislation 
was  by  no  means  all  his  service  to  the  state  at  this  critical 
time.  He  was  one  of  the  great  conservative  forces  when 
conservatism  was  especially  needed.  His  presence  in  the 
Supreme  Court  of  the  state  inculcated  respect  for  that  tribu- 
nal as  a  part  of  the  people's  government,  and  demonstrated 
the  way  of  peaceful  amendment  as  infinitely  better  than 
the  fatal  paths  of  riot,  insurrection,  political  fraud  and 
extra-constitutional  usurpation.  It  was  his  mission  to  prove 
that  the  theory  of  popular  self  government  is  neither  anar- 
chistic nor  disruptive.  He  voiced  no  newly  discovered  or 
foreign  panacea  for  political  ills,  but,  reverting  to  the  prin- 
ciples laid  down  by  the  founders  of  this  government  and 
by  the  authors  of  our  constitution,  he  revealed  the  truth 
that  the  new  Americanism  is  nothing  else  than  a  restoration 
of  the  old.     He  saw  in  the  demand  that  the  people  shall 


THE    PEACEFUL    REVOLUTION  I7 

control  their  public  affairs  without  the  interference  of  legis- 
lators, judges  or  governors  simply  the  claim  of  the  rightful 
owner  to  property  and  powers  wrongfully  held.  Believing 
that  government  is,  and  of  right  ought  to  be,  the  inalienable 
estate  of  all  the  people,  he  imposed  the  entire  structure  of 
political  organization  upon  the  broadest  and  safest  basis, 
and  erected  for  Law  and  Order  their  surest  defense  against 
ignorance,  demagoguery  and  the  passing  storms  of  popular 
passion  and  unrest. 

It  would  not  be  possible  to  trace  within  reasonable 
limits  of  time  and  space  all  the  minor  incidents  and  move- 
ments necessary  to  a  complete  understanding  of  the  impor- 
tance of  Judge  Steele's  career  in  the  Supreme  Court  from 
1901  to  1910.  Enough  has  been  said  to  indicate  that  his 
work  there  bore  a  very  intimate  relation  to  the  great  public 
events  of  that  period,  and  that  in  his  official  opinions  he 
contributed  a  powerful,  and  in  some  measure  a  decisive 
influence  for  the  happy  settlement  of  those  most  serious 
and  most  dangerous  controversies. 

Some  further  review  of  matters  previous  to  that  time 
is  desirable  for  an  intelligent  appreciation  of  his  ideals,  his 
purposes  and  his  opponents. 


CHAPTER  11 

THE  MAKERS   OF  THE   MACHINE 

Rightful  rule  of  the  party,  in  politics,  and  rightful 
rule  by  the  party,  in  government,  must  be  by  the  will  of 
the  majority  and  for  the  welfare  of  the  whole.  The  rule 
of  the  machine,  in  politics  and  in  government,  is  a  rule  by 
the  minority,  for  the  benefit  of  the  few. 

It  is  generally  understood  that  the  year  1892  marked 
the  beginning  of  a  new  era  in  Colorado.  Previous  to  that 
time  the  development  of  the  state  had  been  dependent  mainly 
upon  a  single  branch  of  one  industry — silver  mining.  The 
political  conditions  had  been  similarly  simple,  and  in  spite 
of  the  election  of  two  Democratic  governors — Grant  in  1882 
and  Adams  in  1886 — largely  on  account  of  their  personal 
popularity,  the  state  was  generally  regarded  as  safely 
Republican  upon  partisan  issues  and  steadfastly  devoted  to 
the  principle  of  a  protective  tariff. 

Other  writers  have  traced  the  downfall  of  silver  as  a 
standard  of  value,  the  disastrous  consequences  to  Colorado 
business  from  the  closing  of  the  silver  mines,  the  trans- 
formation of  industry  by  the  development  of  gold  mining, 
the  political  revolution  accomplished  in  this  state  by  what 
was  popularly  regarded  as  the  betrayal  of  the  cause  of  free 
silver,  the  turbulence  and  sedition  rising  to  the  level  of 
insurrection  as  a  result  of  labor  disputes,  and  the  manifold 
disturbances  and  irregularities  incident  to  partisan  contests 
and  personal  rivalries  in  politics.  It  is  not  the  present 
purpose  to  stir  again  the  troubled  waters  of  social  and 
political  controversies  by  retelling  the  story  of  events  that 
have  been  the  subject  of  so  much  furious  discussion,  but 
rather  to  review  their  general  course  and  to  trace  the  broader 


THE    MAKERS    OF    THE    MACHINE  IQ 

and  deeper  principles  involved,  in  order  to  arrive  at  a  clearer 
understanding  of  the  progress  that  has  been  made  and  of 
the  results  that  have  been  gained  in  the  settlement  of  these 
vital  problems. 

In  the  formative  period  from  1892  to  1900,  when  events 
were  shaping  themselves  for  a  great  struggle,  and  also  in 
the  later  decade  when  controversy  reached  its  climax  and 
the  issues  involved  were  decided,  very  few  of  the  partici- 
pants seem  to  have  realized  that  the  reorganization  of 
industry,  the  reorganization  of  politics  and  the  reorganiza- 
tion of  government,  with  the  manifold  incidents  of  change, 
were  all  a  part  of  one  great  movement.  The  events  were 
extremely  complicated  in  their  interrelations,  but  they  were 
all  the  result  of  a  more  or  less  conscious  attempt  of  the 
people  of  the  state  to  adjust  themselves  to  new  conditions 
that  had  arisen  here.  Some  of  these  provocative  conditions 
were  in  the  nature  of  political  wrongs  and  abuses,  while 
others  marked  the  material  development  of  the  state  and 
were  industrial  rather  than  political. 

Previous  to  the  downfall  of  silver  in  1892-93  Colorado 
was  a  mining  state,  and  mining  in  Colorado  at  that  time 
meant  silver  mining.  Other  industries,  such  as  agriculture, 
manufacturing,  transportation,  and  municipal  service  were 
subsidiary  to  and  dependent  upon  silver  mining.  The 
demonetization  of  silver,  with  the  consequent  depreciation 
of  tne  one  thing  Colorado  had  to  sell  in  the  world's  markets, 
necessarily  meant  either  the  destruction  of  practically  all 
that  had  been  accomplished  here,  or  the  establishment  of 
industry  upon  a  new  and  different  foundation.  The  deso- 
lating experiences  of  Aspen,  Creede,  Silver  Cliff  and  Rico 
indicate  what  might  have  been  the  alternative  for  the  entire 
state  if  the  people  of  Colorado  had  failed  to  make  the  most 
of  the  opportunities  that  remained  when  the  silver  mines 
were  closed  as  a  result  of  the  acts  of  the  national  congress. 


20  ROBERT    WILBUR    STEELE 

Fortunately  for  the  state  and  for  its  people,  Colorado 
stands  possibly  first  in  the  variety  as  well  as  in  the  wealth 
of  its  natural  resources.  The  first  immediate  result  of  the 
closing  of  the  silver  mines  was  a  rapid  development  in  gold 
mining,  and  a  slower  but  ultimately  an  even  more  important 
expansion  of  the  agricultural  achievements  of  the  state.  In 
connection  with  these,  industry  was  stimulated  along  num- 
berless lines.  The  cities  grew  rapidly.  Coal  mining 
increased  marvelously,  giving  a  sure  clew  to  the  manufac- 
turing development  of  the  state.  The  railroad  companies 
expended  enormous  amounts  in  advertising  the  attractions 
as  well  as  the  resources  of  Colorado,  and  the  tourist  business, 
the  fruit  business,  the  coal  business,  the  livestock  business 
and  other  branches  of  traffic  transcended  the  transportation 
of  silver  ores  and  mining  camp  supplies,  which  had  been 
the  main  object  of  the  Colorado  railroads  when  pushing 
their  ways  across  the  broad  plains  or  surmounting  the  engi- 
neering difficulties  of  canons  and  passes. 

The  population  of  the  state  increased  rapidly  and  also 
underwent  a  noteworthy  change.  The  earlier  inhabitants 
of  Colorado  were  mostly  from  the  northern  states  of  the 
Mississippi  Valley  and  the  Atlantic  seaboard,  and  American 
born.  Later  years  brought  an  increasing  number  from  the 
southwestern  states,  not  an  inferior  but  a  different  stock; 
and  there  came,  too,  in  these  later  years  a  steadily  greater 
number  of  foreign  born  laborers,  unfamiliar  with  American 
institutions,  standards  and  ideals,  and  easily  swayed  as  the 
dupes  of  demagogues  on  one  side  or  controlled  by  the  agents 
of  wealth,  political  ambition  or  special  privilege  upon  the 
other.  The  disgraceful  Arata  riot  and  lynching  in  Denver 
in  1893,  the  Huerfano  County  rioting  in  1894  involving  the 
United  States  in  an  international  episode  with  the  govern- 
ment of  Italy,  and  the  Leadville  miners'  strike,  which 
required  the  active  service  of  the  state  militia  for  a  period 


THE    MAKERS    OF    THE    MACHINE  21 

of  nine  months  in  1894,  were  early  evidences  of  the  changing 
character  of  the  population. 

Silver  mining  of  the  early  days  was  merely  the  later 
stage  of  prospecting.  The  successful  and  the  unsuccessful 
prospector,  of  similar  origin  and  equal  in  intelligence  and 
social  rank,  later  became,  the  one  the  capitalist  and  mine 
owner,  the  other  the  wage  earner.  The  pioneer  smelters 
were  owned  and  operated  by  men  who  either  were  mine 
owners  or  were  in  close  sympathy  with  the  actual  owners 
and  workers  of  the  mines.  The  early  pages  of  Colorado 
history  are  starred  with  the  names  of  "mining  kings"  and 
"smelter  kings"  who  were  genuinely  men  of  the  people,  and 
their  worldly  successes,  universally  held  to  be  the  natural 
prize  of  their  efforts  and  within  the  reach  of  all  others  of 
their  class,  aroused  no  jealousy  or  hatred  among  those  who 
expected  some  day  also  to  strike  it  rich. 

Previous  to  1892  there  was  not  in  the  Colorado  mining 
districts  a  laboring  class  as  distinct  from  the  mine  owning 
class.  The  miners  of  the  early  days  in  Clear  Creek,  Gilpin 
and  other  counties  were  American  citizens  who  had  their 
full  part  in  patriotic  state  building.  The  introduction  of 
large  numbers  of  miners  from  Missouri  and  other  states 
who  were  neither  prospectors  nor  prospective  mine  owners 
transformed  the  conditions  of  Leadville,  Telluride  and  other 
districts,  while  at  Cripple  Creek,  almost  from  its  beginning 
in  1891,  the  new  conditions  rather  than  the  old  prevailed. 
The  rapid  development  of  coal  mining  brought  to  the  state 
a  large  number  of  alien  laborers,  for  those  mines  were  gen- 
erally owned  by  large  corporations  and  almost  exclusively 
worked  by  wage  earners  who  never  expected  to  become  any- 
thing different  from  what  they  were.  This  industrial 
reorganization  of  the  state  tended  directly  toward  political 
corruption  and  machine  rule ;  supplying  in  the  cities  and 
the    mining    camps    the    bondsmen    and    the    clansmen    of 


22  ROBERT    WILBUR    STEELE 

"gangs,"  "rings"  and  "combines" ;  while  the  recently  arrived 
conservative  voters  brought  from  other  states  their  partisan 
alignments  upon  national  issues  and  were  for  a  time  inde- 
pendent of  conditions,  needs  or  dangers  in  this  state. 

The  early  railroads  of  Colorado  were  for  the  most  part 
built  by  Colorado  men  for  local  needs,  and  they  were  oper- 
ated in  conformity  with  local  interests.  This  was  true  of 
the  Denver  &  Rio  Grande,  the  Colorado  &  Southern,  the 
Colorado  Midland,  and  of  other  lines  which,  under  various 
names,  appear  in  the  early  history  of  the  state.  It  was  not 
true,  of  course,  of  those  plains  roads  that  were  extensions 
of  eastern  systems,  like  the  Union  Pacific,  the  Burlington, 
the  Rock  Island  and  the  Santa  Fe.  The  part  played  by 
the  railroads  in  the  development  of  Colorado  has  not  been 
fully  understood,  but  it  may  be  said  truthfully  that  it  was 
mainly  due  to  the  local  railroads  that  this  state  took  fore- 
most place  among  western  communities  in  its  development, 
and  a  large  share  of  its  prosperity  has  been  the  direct  result 
of  an  intelligent  and  liberal  policy  of  railroad  building  and 
railroad  operation.  Public  appreciation  of  the  services  of 
such  state  builders  as  General  Palmer,  Governor  Evans, 
Colonel  Dodge  and  others  was  general.  There  has  never 
been  in  Colorado  any  such  feeling  against  the  railroads  as 
has  been  manifest  in  many  other  states,  and  the  absence  of 
restrictive  railroad  legislation  was  notable  here  for  many 
years,  after  other  western  states  had  established  commissions 
with  regulating  and  rate  making  powers.  But  in  the  years 
from  1890  to  1900  Colorado  railroads  came  to  be  more  and 
more  parts  of  great  transcontinental  systems  and  less  and 
less  members  of  the  body  of  Colorado  institutions  and 
industries. 

Contrary  to  the  belief  in  some  quarters,  the  railroads 
did  not  play  a  very  important  part  in  politics  in  the  years 
from    1892   to    1900,   but  the   gradual    alienation   of   those 


THE    MAKERS    OF    THE    MACHINE  23 

powerful  corporations  from  strictly  local  attachments  and 
their  alignment  with  the  great  national  systems  of  transpor- 
tation and  finance  had  a  place  in  the  general  movement  of 
industrial  reorganization  in  the  state  and  a  considerable 
effect  upon  other  events.  In  those  years  railroad  companies 
seldom  committed  themselves  openly  to  partisanship,  their 
campaign  contributions  were  allotted  for  business  rather 
than  political  reasons,  and  the  demoralization  of  the  pass 
system,  like  its  benefits,  fell  impartially  upon  Democrats, 
Populists  and  Republicans.  In  those  years,  too,  the  rail- 
roads were  more  often  playing  the  political  game  in  order 
to  secure  some  advantage  over  a  business  rival  than  com- 
bining to  protect  a  class  interest  against  the  government  or 
the  people.  In  the  culminating  struggle  of  1904-5,  however, 
the  railroads  played  an  important  part.  Their  policy  was 
no  longer  exclusively  industrial,  for  the  furtherance  of  their 
own  proper  business  interests  through  the  development  of 
mining,  agriculture  and  manufacturing.  They  became  a 
part  of  the  system  of  machine  politics,  engaged  locally  in 
an  effort  to  control  government  for  their  own  advantage, 
immunity  and  privilege,  and  closely  linked  with  the  national 
masters  of  finance  and  politics. 

The  growth  of  agriculture  in  Colorado  during  this 
period  was  of  the  highest  importance,  and  the  agricultural 
counties  were  destined  to  become  in  later  years  the  conserva- 
tive and  saving  forces  of  the  state,  both  politically  and 
financially.  Yet  these  farmers  were  then  for  the  most  part 
newcomers,  and  unfamiliar  not  only  with  their  social  and 
political  circumstances,  but  also  with  the  conditions  of  their 
own  industry,  upon  which  their  living  was  dependent.  The 
new  settler  in  the  state,  whether  engaged  in  solving  the 
problems  of  dry  farming,  or  learning  the  practice  of  irriga- 
tion, or  devoting  himself  to  any  one  of  the  many  kinds  of 
specialized    agriculture    and    horticulture,    was    inclined    to 


24  ROBERT    WILBUR    STEELE 

leave  politics  to  politicians  and  the  control  of  state  affairs 
to  older  residents. 

In  the  period  from  1892  to  1900  extraordinary  local 
events  resulted  directly  in  strengthening  the  machine  control 
of  parties,  and  had  a  most  important  bearing  upon  the  events 
of  the  following  period  and  upon  the  issues  subsequently 
brought  to  judgment  in  the  courts  and  before  the  ultimate 
tribunal  of  public  opinion.  It  was  popular  disapproval  of 
the  Republican  course  in  congress  rather  than  an  endorse- 
ment of  the  principles  of  the  Populist  platform  that  gave 
the  vote  of  the  state  to  Davis  H.  Waite  for  Governor  in 
1892,  but  four  years  later  the  bolt  of  the  Silver  Republicans 
was  the  result  of  a  deliberate  purpose  and  a  sincere  convic- 
tion of  political  duty.  Wholly  apart  from  the  justice  or 
the  wisdom  of  the  cause  of  silver,  the  political  consequences 
of  the  revolt  of  1896  were  far-reaching.  Senator  Teller  in 
leaving  the  Republican  party  took  with  him  the  great  major- 
ity of  the  leaders  and  the  voters  of  the  formerly  dominant 
party  of  the  state,  leaving  it  in  conditions  where  personal 
control  became  natural  and  necessary,  and  machine  rules 
and  methods  were  the  inevitable  consequence. 

In  Colorado,  as  in  other  states,  the  rivalry  for  the  places 
of  United  States  senator,  under  the  old  system  of  legislative 
election,  had  a  most  demoralizing  effect  upon  state  politics. 
In  some  earlier  campaigns  the  struggle  between  the  partisans 
of  Senator  Teller  and  those  of  Senator  Hill  was  more 
earnest  than  that  between  Democrats  and  Republicans.  If 
it  had  not  been  for  the  senatorial  prize,  it  is  not  probable 
that  Edward  O.  Wolcott  would  have  undertaken  the  task 
of  keeping  alive  the  Republican  organization  in  the  cam- 
paign of  1896  and  through  the  subsequent  years,  and  the 
party  rules  and  customs  then  established  under  those 
peculiar  circumstances  might  not  have  become  the  instru- 
ments  bv   which   the    later   machine    bosses   withstood   the 


THE    MAKERS    OF    THE    MACHINE  2^ 

efforts  of  the  majority  of  the  party  voters  to  secure  neces- 
sary reforms.  If  it  had  not  been  for  Senator  Wolcott,  the 
Republican  party  would  have  been  obliterated  in  1896,  not 
merely  for  lack  of  voters,  but  even  more  for  lack  of  financial 
support.  It  was  inevitable  that  the  man  who  paid  the 
expenses  of  the  party  should  also  be  its  dictator,  and  thereby 
was  established  the  precedent  that  the  head  of  the  organiza- 
tion should  pay  the  party  expenses,  write  the  party  platform 
and  choose  the  party  nominees.  Supreme  crises  in  national 
history  have  brought  dictators,  whose  first  thought  was  to 
bring  the  nation  through  the  stress  of  events  regardless  of 
the  means  employed.  Senator  Wolcott  was  a  political  dic- 
tator, and  he  left  behind  him  instruments  of  autocracy  ready 
for  the  use  of  his  successors. 

Senator  Teller  and  his  associates  unquestionably  repre- 
sented the  great  majority  of  Colorado  Republicans  in  1896; 
Senator  Wolcott  represented  the  minority  of  those  that  had 
been  accustomed  to  vote  the  Republican  ticket  in  this  state, 
and  he  also  represented  the  interest  of  the  powerful  national 
organization  that  elected  the  president  in  1896  and  again  in 
1900,  though  in  both  those  years  the  presidential  vote  of 
Colorado  was  cast  for  the  Democratic  candidates,  and  the 
Democratic  candidates  for  governor  were  elected  in  1896, 
1898  and  1900. 

The  ballot  laws  of  that  time  required  the  use  of 
emblems,  and  the  fight  for  those  tokens  of  party  regularity 
in  the  campaigns  of  1896  and  1898  resulted  in  new,  more 
exclusive  rules  adopted  by  the  Republican  organization, 
which  were  justified  in  the  opinion  of  the  regulars  by  the 
necessity  of  self-preservation ;  while  many  of  the  Silver 
Republicans  who  would  have  liked  to  see  their  course  and 
policies  approved  by  the  Republican  organization  felt  that 
the  regulars  were  warranted  in  adopting  extraordinary  meas- 
ures to  preserve  their  control  of  the  party.     The  main  sig- 


26  ROBERT    WILBUR    STEELE 

nificance  of  these  events  lies  in  the  powerful  impetus  they 
gave  to  the  personal  control  of  a  partisan  organization. 
Senator  Wolcott's  personal  proprietorship  of  the  Republican 
party  lasted  but  a  few  years,  but  the  system  then  established 
to  maintain  the  party  along  the  lines  approved  by  the 
national  organization  became  later  not  merely  the  instru- 
ment by  which  that  party  was  controlled  in  opposition  to 
the  will  of  the  majority  of  the  party  voters,  but  also  the 
model  upon  which  similar  political  methods  were  planned 
and  attempted  in  the  Democratic  party.  It  must  be  admitted, 
however,  by  fair  minded  observers,  that  the  Democratic 
state  organization  never  became  at  any  time  so  subservient 
to  the  domination  of  its  self-appointed  dictators  as  was  the 
case  with  the  Republican  party. 

At  the  same  time  and  out  of  the  same  conditions,  the 
forces  of  ultimate  reform  and  regeneration  were  more 
slowly  developed.  The  revolt  of  the  Silver  Republicans, 
culminating  in  the  establishment  of  the  short-lived  Silver 
Republican  party,  gave  a  tremendous  impetus  to  political 
independence  in  this  state.  Many  of  the  Silver  Republicans, 
after  a  short  period  of  fusion,  allied  themselves  openly  with 
the  Democrats,  strengthening  and  stimulating  the  progres- 
sive wing  of  that  party ;  others  returned  to  the  Republican 
ranks,  and  others,  possibly  a  majority  of  the  Silver  Repub- 
licans, increased  the  number  of  independent  voters  who  held 
the  balance  of  power  between  the  parties  for  many  years, 
swinging  the  state  from  one  side  to  the  other  through  a  long 
series  of  campaigns,  insistently  urging  their  demands  for 
reform  upon  party  leaders  and  public  officials,  ratifying 
every  measure  of  progressive  legislation  presented  for  their 
approval,  and  ultimately  consummating  the  triumph  of 
popular  self  government,  not  in  or  through  any  one  party, 
but  by  the  force  of  a  persistent  and  pervasive  public  opinion. 

Another  powerful  influence  and  instrument  of  machine 


THE    MAKERS   OF    THE    MACHINE  27 

politics  developed  in  the  city  of  Denver,  which,  comprising 
a  population  of  nearly  one-third  of  the  entire  state,  passed 
through  a  political  development  similar  to  that  of  other 
American  cities.  The  great  public  utility  corporations, 
chartered  to  supply  the  city  with  such  necessities  of  civiliza- 
tion as  water,  gas,  electricity,  telephone  and  tramway  service, 
seem  to  have  had  less  than  the  usual  excuse  for  entering 
upon  political  activities,  but  they  very  soon  became  a  con- 
stant source  of  political  corruption  and  civic  demoralization, 
and  extremely  dangerous  to  the  public  interests.  Primarily 
the  corporation  activities  were  local,  municipal  rather  than 
state-wide,  but  the  railroad  companies  and  the  larger  coal 
companies,  with  the  smelting  companies  and  the  one  great 
steel  company  of  the  state,  allied  in  interests  with  the  Denver 
public  utilities,  were  drawn  into  political  activity  from  time 
to  time,  to  a  greater  or  less  extent.  Doubtless  some  of  the 
evil  that  has  been  charged  against  the  corporations  of  Colo- 
rado was  due  to  the  overzeal,  the  greed,  the  folly  and  the 
blindness  of  petty  officials  and  agents,  who  were  equally 
ready  to  blackmail  the  corporations  or  to  betray  the  people, 
according  to  which  job  paid  them  the  best.  But  the  present 
purpose  is  not  so  much  to  condemn  or  to  condone  the  political 
activities  of  the  corporations  and  their  agents  as  to  point 
out  the  fact  of  their  interference  with  the  course  of  politics 
and  government,  based  upon  a  policy  broadly  non-partisan 
in  its  scope  and  having  as  its  purpose  the  control  of  the  state 
and  city  governments  by  extra-constitutional  methods  and 
without  regard  to  the  will  or  the  intelligent  opinion  of  the 
majority  of  the  citizens  of  the  state. 

Coupled  with  the  political  activities  of  the  Denver 
corporations,  there  must  also  be  reckoned  the  existence  of 
a  Denver  political  machine,  which  in  the  efficiency  of  its 
work,  as  well  as  in  its  flagrant  disregard  of  law,  order  and 
justice,  fully  deserves  the  appellation,  Tammany,  commonly 


28  ROBERT    WILBUR    STEELE 

applied  to  it.  There  are  few  worse  frauds  recorded  in  the 
history  of  American  politics  than  those  of  the  Denver  bosses 
and  heelers  who  established  the  "Big  Mitt"  as  a  term  of 
local  infamy.  Working  usually  under  the  Democratic  name, 
this  machine  was  much  wider  than  the  party.  It  rarely  hesi- 
tated to  sacrifice  party  interests  as  well  as  public  welfare  to 
the  dictates  of  personal  greed  and  ambition,  and  it  ultimately 
became  an  effective  instrument  to  be  used  by  its  bosses  and 
their  employers  regardless  of  party  principles  or  even  of 
party  advantage.  The  purpose  of  its  existence  was  to  con- 
trol government  regardless  of  the  will  of  the  people. 

Outside  of  Denver  similar  political  evils  existed  to  a 
lesser  degree.  In  Pueblo  the  rule  of  a  partisan  Republican 
machine  was  prolonged  for  a  time  against  the  will  of  the 
majority  of  the  voters  by  bare-faced  fraud.  In  the  counties 
of  Huerfano  and  Las  Animas  the  rottenness  of  political 
conditions  has  been  notorious  for  many  years,  with  both 
parties  profiting  by  the  disregard  of  law  and  neither  party 
bold  enough  to  put  a  stop  to  the  customary  violation  of  the 
principles  of  American  free  government.  In  Conejos  and 
Costilla  counties  the  results  of  elections  have  depended  upon 
the  convenience  of  a  bi-partisan  machine  rather  than  upon 
the  opinions  of  the  voters,  and  too  often  Conejos  and  Cos- 
tilla have  determined  the  results,  both  in  state  conventions 
and  in  state  elections. 

An  endless  list  of  minor  factors  might  be  introduced 
into  the  problem,  but  enough  has  been  said  to  establish  the 
point  that  the  conditions  confronting  the  people  of  the  state 
at  the  beginning  of  the  twentieth  century  involved  something 
more  than  a  simple  choice  between  two  political  parties. 
They  were  not  simply  the  consequences  of  the  great  fight 
over  Silver's  Lost  Cause.  They  were  something  more  than 
the  nation-wide  protest  against  corporation  interferences  in 
politics  and  government.     They  involved  much  more  than 


THE    MAKERS    OF    THE    MACHINE  29 

the  activities  of  the  alleged  Socialistic  Western  Federation 
of  Miners  and  a  mine  owners'  association  that  claimed  to  be 
engaged  in  a  life  or  death  struggle  for  the  rights  of  property. 

In  the  ultimate  analysis  a  single  purpose  animated  all 
these  obnoxious  activities.  The  "regular"  politician,  striv- 
ing to  maintain  his  organization  intact  against  the  will  of 
the  majority  of  the  party  voters;  the  Tammany  election 
thief  and  ballot  box  stuffer ;  the  political  corporation  official, 
attorney  or  agent ;  the  bribing  lobbyist  and  the  bribed  legis- 
lator ;  the  demagogue  who  by  turns  baited  the  corporations 
and  hired  himself  secretly  to  their  underhanded  purposes; 
the  dynamiter  by  whomsoever  employed,  and  the  advocate  of 
lynch  law,  whether  openly  before  the  mob  in  the  street  or 
with  fallacious  argument  in  the  courts  of  the  state — all 
these  and  many  more  sought  but  a  single  purpose,  which 
was  to  substitute  something  else  in  place  of  the  government 
according  to  the  freely  expressed  will  of  the  majority,  as 
established  by  the  founders  of  the  American  republic.  They 
sought  to  control  the  party  as  a  means  to  control  the  govern- 
ment. The  petty  leader  of  a  factional  gang;  the  boss  of  a 
political  machine ;  the  usurper  of  state  authority  not  freely 
granted  by  the  people's  will,  were  successive  steps  in  the 
evolution  of  machine  government.  Under  a  specious  plea 
of  personal  advantage,  partisan  need  or  public  necessity, 
the  makers  of  the  machine  sought,  in  one  way  or  another, 
and  to  a  greater  or  less  degree,  to  impugn  and  to  impair 
those  primitive  principles  of  human  liberty  which,  older  by 
far  than  the  constitution  of  the  state  of  Colorado  or  the 
constitution  of  the  United  States,  mark  the  foundation  of 
the  entire  structure  of  free  government  for  all  peoples  in 
all  times. 

The  greatest  service  that  a  judge  of  the  highest  court 
of  the  state  could  have  rendered  to  its  people  in  this 
troublous   period  was   to   see   the   relation   between   present 


30  ROBERT    WILBUR    STEELE 

complicated  events  and  the  fundamental  principles  of  liberty 
and  justice,  and  amid  all  the  intense  bitterness  and  the 
disturbing  clamor  of  such  an  era  of  strife,  to  hold  clearly 
before  the  public  eye  those  safeguards  of  free  government 
for  whose  violation  no  stress  of  the  moment  can  be  a  suffi- 
cient warrant. 

Because  of  his  position  in  the  state  as  well  as  because 
of  his  personal  character,  his  powers  of  logic  and  discern- 
ment, and  the  fearlessness  of  a  patriotic  and  conscientious 
mind.  Judge  Steele  was  able  to  render  this  service  more 
efficiently  than  any  other  man  of  his  time ;  and  therein  lies 
both  the  measure  of  his  service  to  the  people  and  the  state, 
and  his  claim  to  grateful  remembrance  after  the  animosities, 
the  dissensions  and  the  turmoil  of  the  recent  struggle  shall 
have  passed  away. 


CHAPTER  III 

IN  LIFE'S  MORNING 

Robert  Wilbur  Steele  was  born  at  Lebanon,  Warren 
County,  Ohio,  November  14,  1857.  ^^  ^^^  ^^^  second  of 
five  children,  three  of  whom — himself  and  two  younger 
sisters — lived  to  maturity,  while  an  elder  sister  and  a 
younger  brother  died  at  an  early  age. 

Some  men  take  pleasure  in  advertising  their  ancestry, 
seemingly  hoping  to  divert  attention  from  their  own  lack 
of  merit  by  exalting  the  virtues  of  their  forefathers.  Judge 
Steele,  in  later  years,  was  accustomed  to  emphasize  the 
American  principle  that  it  is  what  a  man  is  and  what  a 
man  does  that  really  count  in  this  world.  Yet  if  there  is 
any  truth  in  the  theory  of  heredity — and  few  will  deny  that 
it  is  at  least  one  of  the  elements  that  go  to  influence,  if  not 
to  determine,  character — the  parents  of  Robert  W.  Steele 
might  have  based  a  confident  expectation  of  a  useful  and 
honorable  life  for  him  upon  their  knowledge  of  the  char- 
acter, the  attainments  and  the  public  services  of  members 
both  of  his  father's  and  his  mother's  families. 

He  was  the  son  of  Dr.  Henry  King  Steele  and  Mary 
Frances  Dunlavy  Steele.  His  father's  parents  were  Dr. 
John  Steele  and  Cornelia  King  Steele,  the  descendants  of 
pioneer  settlers  of  Ohio  and  Kentucky.  Born  in  Dayton, 
Ohio,  April  1,  1825,  Dr.  Henry  Steele  was  educated  at 
Center  College,  Danville,  Kentucky,  and  won  his  degree  of 
medicine  and  surgery  at  the  University  of  New  York.  At 
the  age  of  32,  when  his  son,  Robert,  was  born.  Dr.  Steele 
was  building  up  his  practice  in  the  town  of  Dayton  and 
rapidly  winning  a  place  for  himself  as  a  physician  and  a 
man  in  that  community. 


32  ROBERT    WILBUR    STEELE 

Dr.  Henry  Steele's  father  was  Dr.  John  Steele,  a  prom- 
inent physician  of  Dayton,  who  came  to  that  town  in  1812 
from  Kentucky,  where  his  father,  Robert  Steele,  had  been 
one  of  the  founders  of  Transsylvania  College  at  Lexington. 
(See  genealogical  note  below.) 

Chief  Justice  Robert  W.  Steele  of  Colorado  was  not, 
however,  named  in  remembrance  of  his  great-grandfather 
of  Kentucky,  but  for  another  Robert  W.  Steele,  who  was 
the  son  of  Judge  James  Steele  and  the  nephew  of  Dr.  John 
Steele,  and  who  was  for  many  years  prominent  in  the  affairs 
of  Dayton  as  a  patriot,  scholar,  author  and  philanthropist. 
Having  studied  to  fit  himself  for  the  practice  of  the  law, 
this  elder  Robert  W.  Steele,  upon  the  threshold  of  an  active 
and  successful  career,  was  forbidden  by  his  physician  to 
continue  his  studies.  "\^ery  well,"  he  is  reported  to  have 
replied ;  "if  I  cannot  do  my  work  in  the  world  as  I  have 


GENEALOGY  OF  ROBERT  WILBUR  STEELE 
I 

Robert  Wilbur  Steele;  born  November   14,   1857;   died  October   12, 
1910. 

II 

Dr.  Henry  King  Steele,  1825-1893  ;  married  Mary  Frances  Dunlavy, 
1831 . 

Ill 

Dr.  John  Steele,  1791-1854;  married  Cornelia  King,  1803-1879. 
John  C.  Dunlavy,  1796-1834;  married  Katherine  Latham,  1800-1876. 

IV 

Robert  Steele,  1738-1801;  married  Agnes  Coulter,  1814. 

Henry  King,  1765-1837;  married  Charlotte  Morrell,  1767-1816. 
Francis  Dunlavy,  1761-1839;  married  Mary  Carpenter,  1764-1828.     , 
Latham;  married  Anna  Carmichael. 

Robert  Steele  (IV)  was  the  son  of  Andrew  Steele  of  Rock- 
bridge County,  Virginia.  Agnes  Coulter  was  the  daughter  of  James 
Coulter,  also  of  Rockbridge  County. 

Henry  King    (IV)    was  the  son  of  Frederick    (1738-1796)    and 

Mary    (Ayers)     (1762 )    King;    Frederick   King  was  the  son  of 

Constant    (1712-1783)    and    Phoebe     (Horton)     (1715-1787)    King; 
Constant  was  the  son  of  Captain  John  King. 


IN  life's  morning  33 

planned,  I  will  help  others  to  do  theirs."  The  Robert  W. 
Steele  high  school  building  in  Dayton,  occupied  since  1892, 
is  a  monument  of  his  service  to  that  city  and  its  people. 

Mary  Frances  Dunlavy  Steele  was  the  daughter  of 
John  C.  Dunlavy  and  the  granddaughter  of  that  Francis 
Dunlavy  who  was  president  judge  of  the  First  Circuit  Court 
of  Ohio  and  the  first  judge  appointed  to  office  in  that  state. 
She  was  a  native  of  Lebanon,  where  her  father  died  while 
she  was  a  young  girl,  and  where  she  lived  until  her  marriage 
to  Dr.  Henry  K.  Steele. 

Shortly  after  Robert's  birth  his  mother  returned  to  her 
home  in  Dayton,  and  his  earliest  years  were  spent  in  that 
place,  which  was  then,  as  it  is  now,  one  of  the  most  pleasant 
towns  of  southwestern  Ohio.  The  time  was  that  of  the 
troublesome  period  immediately  preceding  the  great  Civil 
War,  and  the  problems  of  national  policy  and  national 
organization  that  already  divided  the  sections  and  threatened 
to  destroy  the  structure  of  the  Union  were  pressing  hard 
for  settlement.  No  one  was  more  vitally  concerned  in  the 
questions  then  under  discussion,  and  soon  after  fought  to 
a  tragic  conclusion,  than  the  people  of  the  border  states. 
The  shadow  of  a  great  conflict  already  lay  over  the  lives 
of  all  the  nation,  and  especially  of  those  men  and  women 
whose  ties  of  family,  friendship  and  business  extended 
across  the  political  boundaries  fixed  by  mountain  and  river 
between  the  North  and  the  South. 

It  is  an  interesting  fact  that  the  children  of  the  war 
time,  including  those  born  immediately  before  that  period 
of  strife  and  hatred,  as  well  as  those  born  during  those 
terrible  years,  seem  to  have  inherited,  or  to  have  breathed 
in  from  their  surroundings  in  their  earliest  days,  more  than 
the  common  hatred  of  war  and  more  than  the  common  toler- 
ance of  opposing  political  opinions,  coupled  with  the  belief 
that  human  differences  of  politics,  philosophy  and  religion 


34  ROBERT    WILBUR    STEELE 

are  capable  of  peaceable  and  honorable  adjustment.  There 
are  not  many  stories  of  those  early  years,  but  no  woman 
who  experienced  at  that  time  what  war  really  meant  failed 
to  offer  her  prayers  that  the  nation  might  forever  be  spared 
another  such  visitation  of  wrath ;  and  no  boy,  growing  up 
amid  the  sorrows,  the  sacrifices,  and  the  tremendous  emo- 
tional intensities  of  such  a  period,  could  have  failed  to 
receive,  upon  the  one  hand,  a  baptism  of  patriotism,  and 
upon  the  other  a  lasting  impression  of  the  horror  and  the 
folly  of  war.  Such  early  influences,  though  received  at  a 
time  when  the  child  is  too  young  to  have  a  conscious  knowl- 
edge of  political  events,  or  to  preserve  definite  memories 
for  future  years,  often  have  a  profound  effect  in  the  deter- 
mination of  character,  and  doubtless  some  traits  of  the 
future  chief  justice  of  Colorado  might  be  traced  to  war 
times  in  Ohio.  True  it  is  that  prominent  among  his  char- 
acteristics was  a  warm  and  eager  patriotism,  ready  at  all 
times  to  make  the  welfare  of  the  nation  and  the  state  the 
primary  test  and  measure  of  every  political  act,  and  true 
it  is  also  that  the  arbitrament  of  the  sword  and  the  course 
of  violence  never  found  encouragement  from  the  acts,  the 
counsel  or  the  judicial  decisions  of  Robert  W.  Steele. 

The  time  came,  as  it  came  in  all  the  homes  of  the  land, 
south  as  well  as  north,  when  the  father  and  the  husband 
had  to  decide  which  should  come  first  in  the  line  of  duty, 
the  nation  or  the  home.  Doctor  Steele  made  his  decision 
and  offered  his  life  and  his  professional  knowledge  and  skill 
to  the  Union.  As  surgeon  of  the  Forty-fourth  Ohio  infantry 
and  later  of  the  Eighth  Ohio  cavalry.  Dr.  Henry  Steele 
served  his  country  with  the  same  loyalty  and  fidelity  with 
which  his  father,  Dr.  John  Steele,  had  cared  for  the  sick 
and  wounded  in  Dayton's  military  hospital  in  the  war  of 
1812. 


IN  life's  morning  35 

During  most  of  the  war  time  Robert  Steele  lived  in 
Dayton.  A  part  of  the  time  he  was  in  Lebanon,  and  a  part 
in  Hamilton,  and  twice  he  went  for  short  periods  across  the 
river  into  Kentucky,  where  Doctor  Steele  was  stationed  for 
his  work  as  an  army  surgeon. 

It  was  in  Dayton  that  Robert  had  his  tirst  experience 
in  school,  and  it  was  in  Dayton,  too,  that  he  made  his  first 
effort  in  the  business  world,  an  incident  characteristic  of 
the  boy  that  was  "father  of  the  man."  Robert,  so  the  family 
story  runs,  like  other  boys  of  his  acquaintance,  wished  to 
sell  upon  the  streets  the  papers  containing  the  latest  war 
news,  and,  getting  a  number  of  copies  fresh  from  the  press, 
was  soon  at  work.  After  a  time  he  came  home,  happy  and 
successful.  His  pleasing  manner  and  personal  charm  had 
won  the  notice  and  approval  even  of  strangers,  and  he 
poured  his  accumulated  store  of  pennies  into  his  grand- 
mother's lap,  and  never  cared  to  ask  for  them  again.  It 
was  doing  a  work  in  the  world,  acceptably  and  successfully, 
that  delighted  him,  and  not  the  money  he  gained  thereby. 

Also  characteristic  of  him  in  this  period  was  the  favor 
with  which  he  was  regarded  by  all  his  relatives.  He  was 
a  boy  whom  everyone  liked,  and  in  the  frequent  changes 
that  came  into  his  life  in  the  early  years  he  possibly  acquired, 
much  sooner  than  most  children,  the  ability  to  meet  new 
people  and  to  make  friends  easily. 

Another  story  is  illustrative  of  a  different  kind  of 
influence  and  another  line  of  thought.  A  great  fire  among 
the  wooden  buildings  seemed  to  threaten  the  entire  town 
with  destruction.  Terrified  by  the  roar  of  the  fire,  the  glare 
that  lighted  the  sky  and  the  brands  that  fell  far  ahead  of 
the  leaping  flames,  Robert  rushed  into  the  house,  crying  to 
his  grandmother:  "Come  quick!  Get  down  on  your  knees 
any  pray  that  the  fire  may  be  stopped,  or  we  shall  all  be 
burned  up !"    Such  childish  faith  and  zeal  had  an  immediate 


36  ROBERT    WILBUR    STEELE 

reward,  for  the  grandmother  complied  with  his  request, 
though  the  ultimate  result  remains  unrecorded. 

It  was  in  the  Dayton  period,  too,  in  the  years  following 
the  war,  that  Robert  showed  very  clearly  his  fondness  for 
political  affairs,  a  characteristic  that  became  one  of  the 
controlling  elements  of  his  career.  At  an  age  when  most 
boys  find  their  chief  delight  in  the  noisy  sports  of  the  play- 
ground, or  in  such  amusements  as  the  circus  or  the  more 
modern  moving  picture  show,  Robert  Steele  took  to  politics. 
Like  other  boys,  he  was  attracted  by  the  noise  and  the  color 
that  marked  the  campaigns  immediately  following  the  war, 
the  bands  and  the  gaudy  uniforms  and  the  torchlight  pro- 
cessions and  the  stump  speeches,  but  he  had  further  a  sincere 
interest  in  the  political  questions  involved  and  the  public 
interests  that  were  at  stake  in  these  discussions.  The  reason- 
ableness of  his  thought  may  be  illustrated  by  a  single  inci- 
dent. He  was  usually  an  obedient  child,  but  once,  after 
having  forbidden  Robert's  attendance  at  a  political  meeting, 
his  father  was  surprised  to  find  him  sitting  in  the  front  row 
and  listening  with  marked  attention  to  the  arguments  of  the 
speaker.  After  they  had  returned  home  his  father  said  to 
him :  "Robert,  didn't  I  tell  you  you  shouldn't  go  to  that 
meeting^"  "Yes,  father,"  was  the  logical  reply;  "but  I 
thought  there  was  no  harm  in  my  going  where  you  did." 

In  a  recent  letter,  Mr.  Charles  J.  McKee  of  Dayton 
gives  an  interesting  reminiscence  of  those  early  years : 

"As  a  student  Bob  held  a  good  record,  but  never,  to  my  knowl- 
edge, excelled  in  a  high  degree.  I  believe  he  was  alwa3's  indus- 
trious and  conscientious  in  his  work.  He  even  at  that  age  differed 
from  most  of  us  in  being  a  steady  reader  of  newspapers,  and  I  can" 
remember  that  at  times  when  we  would  ask  him  to  join  us  on  some 
excursion  of  sport  we  would  have  to  wait  until  he  could  finish  his 
perusal  of  the  news  of  the  day.  This  was  a  marked  characteristic 
in  him,  and  I  can  say  that  he  had  a  far  better  knowledge  of  what 
was  going  on  than  any  of  us,  and  this  extended  into  public  affairs 
and  matters  of  politics  with  which  we  as  boys  had  absolutely  no 
concern,  but  which  seemed  to  interest  him  in  more  than  an  ordinary 


IN    LIFE  S    MORNING  37 

degree.     He  was  not  dependent  on  his  fellows  especially  in  matters 
of  judgment  or  opinion  and  often  went  his  own  way  alone." 

Although  he  was  not  afflicted  with  sickness  other  than 
the  ordinary  illnesses  and  ailments  of  childhood,  Robert 
Steele  was  not  a  robust  boy,  and  for  a  time  his  father, 
watching  him  with  the  careful  eye  of  a  skilled  physician, 
was  anxious  about  him.  Like  other  veterans  of  the  war, 
Doctor  Steele  had  returned  to  his  home  to  find  his  practice 
gone  and  the  necessity  before  him  of  opening  new  ways  of 
business.  For  some  years  he  remained  in  his  old  home  in 
Dayton,  but  in  1870,  for  business  reasons  and  even  more 
because  of  what  the  New  West  of  that  time  had  to  offer 
for  his  son  in  the  way  of  better  health  and  future  oppor- 
tunities, he  resolved  to  come  to  Denver,  and  arrived  in  this 
city  in  the  late  summer  of  that  year.  His  family,  consisting 
of  his  wife,  son  and  two  daughters,*  followed  two  months 
later,  coming  by  way  of  the  newly  completed  Kansas  Pacific 
Railroad  from  Kansas  City.  Colorado  has  been  good  to 
many  newcomers,  but  very  few  of  them  have  had  their  faith 
and  hope  in  this  state  better  rewarded  than  Doctor  Steele 
and  his  son. 

The  year  1870  is  generally  recognized  as  marking  the 
transition  from  the  old  to  the  new  in  Colorado.  In  that 
year,  on  June  15,  the  first  track  of  a  railroad  was  laid  into 
Denver,  and  on  the  24th  of  the  same  month,  the  coming  of 
th*^  first  locomotive,  via  the  Denver  Pacific  from  Cheyenne, 
was  properly  celebrated  in  connection  with  the  formal 
driving  of  the  last  spike.  On  August  15,  1870,  the  second 
railroad,  the  Kansas  Pacific,  completed  its  line  to  Denver. 
In  the  same  year  the  first  gas  plant  was  constructed,  and 
the  first  system  of  domestic  water  supply,  outside  of  the 
primitive  wells,  was  established.     Small  wonder,  amid  so 


♦Harriet  D.  Steele,  married  to  John  C.  Murray;  Mary  F.  Steele, 
married  to  William  M.  Spalding. 


38  ROBERT    WILBUR    STEELE 

many  evidences  of  substantial  progress,  that  the  growing 
community  dropped  the  pretentious  title  of  Denver  City 
and  thereafter  faced  the  world  upon  the  solid  foundation 
of  real  accomplishments  as  Denver.  The  federal  census  of 
that  year  marked  the  population  of  Denver  at  all  of  4,759' 
and  proved  to  be  the  same  disappointment  to  its  inhabitants 
that  all  subsequent  census  counts  have  been,  but  the  people 
quickly  consoled  themselves  for  their  disappointment  with 
the  complacent  assurance  that  before  the  end  of  that  year 
enough  new  people  had  come  to  town  to  make  its  population 
fully  5,000. 

From  this  same  year  of  1870  also  dates  the  beginning 
of  the  real  and  general  development  of  the  resources  of 
Colorado.  The  territory  had  been  organized  in  1861,  but 
it  was  not  until  May,  1870,  that  the  arrival  in  Denver  of 
the  advance  guard  of  the  Greeley  colonists  signalized  the 
start  of  the  agricultural  development  of  the  state.  Colorado 
Springs  and  Loveland  were  founded  in  the  following  year. 

The  fact  that  Doctor  Steele  and  his  son  Robert,  then 
a  boy  of  13,  came  to  Colorado  at  this  particular  time  is 
recorded  as  something  more  than  a  mere  coincidence  of 
events,  for  the  period  was  one  of  unusual  opportunities  and 
influences.  The  year  distinctly  marked  the  passing  of  the 
era  of  the  pioneers,  and  the  beginning  of  the  era  of  develop- 
ment. Doctor  Steele  and  his  young  son  were  typical  of  two 
important  classes  of  state  builders,  the  one  of  the  men  of 
ripe  experiences  and  mature  powers,  who  laid  the  founda- 
tions of  the  new  state  with  the  wisdom  gained  in  older 
commonwealths,  and  fixed  the  institutions  and  the  sentiments 
of  the  new  community  in  close  bonds  of  sympathy  with  the 
great  federal  union;  the  other  of  the  younger  generation, 
born  east  of  the  great  river,  but  coming  to  the  mountain 
state  young  enough  to  be  thoroughly  western  in  spirit  and 
becoming  themselves  the  first  fruits  of  a  truly  western  edu- 


IN  life's  morning  39 

cation  and  developing  a  genuine  and  distinctive  western 
patriotism  and  ideals.  Not  until  many  years  later  did  the 
generation  of  Colorado's  native  sons  come  to  have  a  primary 
influence  in  the  affairs  of  the  state,  but  it  may  be  truly  said 
that  of  the  many  children  who  have  accompanied  their 
parents  inward  across  the  Colorado  boundaries,  none  has 
been  more  truly  a  child  of  Colorado,  loyal,  patriotic, 
intensely  devoted  not  merely  to  her  material  welfare,  but 
also  to  the  establishment  and  maintenance  of  high  ideals  of 
citizenship  and  civilization,  than  Robert  W.  Steele. 

Of  the  many  influences  that  wrought  toward  the  shap- 
ing of  the  character  of  the  boy,  and  later  of  the  man,  none 
was  more  important  than  the  father,  whose  care  for  the 
physical  well-being  of  his  son  was  responsible  for  the  trans- 
planting of  the  youth  to  the  West.  Doctor  Steele  was  a 
man  of  extraordinary  personality  and  ability,  and  his  quali- 
ties quickly  found  recognition  in  the  rapidly  growing  com- 
munity of  Denver.  In  a  memoir  that  was  read  before  the 
Denver  and  Arapahoe  Medical  Society  shortly  after  Doctor 
Steele's  death.  Dr.  Henry  Sewall,  who  knew  him  well,  thus 
describes  him : 

"Arriving  here  in  1870,  when  Denver  had  just  reached  the  legal 
age  of  manhood  and  six  years  before  the  territory  of  Colorado  had 
matured  into  statehood,  he  was  truly  a  pioneer  in  all  that  pertained 
to  the  upbuilding  of  the  city  and  the  state.  So  well  was  his  ability 
appreciated  by  the  laity  that  he  was  able  after  seventeen  years  to 
retire  from  active  practice  in  comparative  affluence.  We  who  knew 
him  personally,  therefore,  gave  to  him  freely  that  respect  which  is 
only  granted  to  one  who  has  left  the  present  strife  with  all  his 
powers  intact.  For  many  years  his  personal  appearance  was  more 
venerable  than  his  age  would  warrant.  The  fringe  of  fine,  white 
hair  about  a  massive  head;  the  keen  but  kindly  eye,  rarely  without 
its  twinkle  of  humor;  the  direct  and  honest  look,  all  at  once  won  the 
confidence  of  the  stranger  and  led  the  mere  acquaintance  to  seek  to 
become  a  friend.  No  phrase  so  well  depicts  our  conception  of  Dr. 
Steele's  make-up  as  'old-fashioned.'  His  disposition  was  peculiarly 
child-like.  Sober  reflection  was  his  mental  habit,  but  he  was  saved 
from  melancholy  by  a  humor  which  lightened  every  passing  event. 
His  extreme  modesty  would  have  resulted  in  vacillation  and  timidity 
in  one  less  fully  endowed  with  moral  and  physical  courage,  and  was 


40  ROBERT    WILBUR    STEELE 

one  of  his  old-fashioned  charms  which  covered  a  reserve  power  that 
was  only  disclosed  now  and  then  as  emergencies  requiring  decisive 
action  arose." 

In  1879  Doctor  Steele  was  appointed  a  member  of  the 
State  Board  of  Health,  and  in  1891,  when  the  same  board, 
which  had  been  allowed  to  drop  out  of  existence,  was 
re-established  by  Governor  Routt,  Doctor  Steele  was  reap- 
pointed to  its  membership.  Soon  after  his  arrival  in  this 
state,  he  organized  the  Colorado  Medical  Society,  in  1871, 
and  in  1875  he  was  its  president.  Beginning  in  1877  he 
served  for  a  number  of  years  as  the  first  dean  of  the  medical 
department  of  the  University  of  Denver,  and  his  name 
appeared  upon  its  faculty  roll  as  professor  of  the  principles 
and  practices  of  surgery  and  clinical  surgery. 

Undoubtedly  Doctor  Steele's  most  important  public 
service  was  as  health  commissioner  of  the  city  of  Denver. 
He  was  first  appointed  to  that  position  by  Mayor  Piatt 
Rogers  in  1891,  and  continued  to  occupy  it  until  his  death 
in  1893.  No  better  measure  of  his  good  work  in  this  office 
can  be  had  than  the  statistics  of  the  death  rate  for  the  city. 
In  the  year  preceding  his  appointment  the  deaths  had  been 
23.7  per  thousand,  largely  as  a  consequence  of  bad  water 
supply  and  other  unsanitary  conditions.  In  the  first  year 
of  Doctor  Steele's  work  as  health  commissioner  the  death 
rate  fell  to  18.6  per  thousand,  and  in  the  second  year  there 
was  a  further  decrease  to  14.27  per  thousand.  For  his 
services  in  this  office  Doctor  Steele  steadfastly  refused  to 
accept  any  pay,  and  gave  his  time  and  effort  freely  for  the 
city's  good. 

At  the  time  of  his  death,  which  occurred  January  20, 
1893,  Doctor  Steele  was  greatly  interested  in  the  problem 
of  caring  for  sufferers  from  contagious  diseases,  some  of 
whom  had  died  and  many  of  whom  had  been  woefully 
neglected  as  a  consequence  of  inadequate  facilities  for  their 


IN  life's  morning  41 

proper  treatment.  He  had  urged  the  city  authorities  to 
build  a  permanent  hospital  for  the  care  of  such  cases,  and 
at  the  time  of  his  death  it  had  been  completed  according  to 
his  plans  and  was  ready  for  occupancy.  Fitly  named  the 
Steele  Memorial  Hospital,  the  building  stands  today  as  a 
permanent  token  of  the  public  appreciation  of  the  services 
he  gave  to  the  city  and  of  the  universal  respect  and  esteem 
with  which  he  was  regarded. 

The  following  resolution  was  unanimously  adopted  by 
the  Board  of  Supervisors  of  the  City  Council  of  Denver 
February  20,  1893,  and  by  the  Board  of  Aldermen  February 
9,  1893,  and  was  approved  by  the  Mayor  February  21,  1893: 

Whereas,  The  late  Dr.  H.  K.  Steele  was  chief  officer  of  the 
Health  Department  of  the  city  and  gave  freely  and  without  charge 
his  efficient  service  in  organizing  and  placing  the  Health  Depart- 
ment in  its  present  efficient  condition; 

Therefore,  Be  it  resolved  by  the  City  Council  of  the  City  of 
Denver,  That  the  hospital  heretofore  established  by  the  Board  of 
Health  on  the  northeast  corner  of  Seventh  avenue  West  and  Evans 
street  for  the  purpose  of  an  isolation  hospital,  be  and  the  same  is 
hereby  named  the  Steele  Memorial  Hospital,  and  shall  be  so  styled 
in  all  official  documents  upon  and  after  the  passage  of  this  resolution. 

Whatever  else  may  have  been  the  boasts  of  the  budding 
metropolis  of  the  West,  Denver  could  not  claim  distinction 
in  1870  because  of  the  excellence  of  its  school  system.  It 
was  not  until  seven  years  later  that  the  first  high  school 
class  in  Colorado  was  graduated,  and  of  that  class  Robert 
Wilbur  Steele  was  an  honored  member. 

Some  of  the  activities  of  the  intervening  years  are 
worthy  of  special  mention.  Robert  Steele  had  not  been 
many  years  in  Denver  before  he  began  to  earn  money  for 
himself.  One  of  his  earliest  jobs  was  at  the  Union  Bank, 
where  he  swept  out  the  office  and  made  himself  generally 
useful.  He  also  acted  for  a  time  as  collector  for  Doctor 
Williams,  who  was  associated  in  professional  work  with 
Doctor  Steele,  and  from  the  age  of  thirteen  he  earned  all 
his  own  spending  money. 


42  ROBERT    WILBUR    STEELE 

To  this  period  also  belongs  another  set  of  experiences 
which  were  destined  to  have  an  important  bearing  upon  his 
future  ability  and  success.  Soon  after  Doctor  Steele's  arrival 
in  Colorado,  some  cousins  of  his  bought  a  ranch  in  the  east- 
ern part  of  the  San  Luis  Valley,  near  Villa  Grove,  and 
there  for  several  years  Robert  spent  his  summer  vacations. 
The  outdoor  life  and  exercise  were  of  incalculable  value  to 
him.  He  rode  horseback,  he  drove  cattle,  he  fished  and 
hunted,  he  did  all  that  a  boy  may  do  in  the  country  in  the 
summer  time,  and,  above  all,  he  absorbed  immeasurable 
quantities  of  bright  Colorado  sunshine  and  breathed  without 
limit  the  pure  air  of  the  Colorado  mountains,  until  kindly 
Nature  had  more  than  redeemed  the  promises  that  had 
attracted  the  anxious  father  to  this  state.  From  those  boy- 
hood experiences  he  first  gained  that  love  of  Colorado 
scenery  and  of  the  free  life  of  outdoors,  the  life  of  the  ranch 
and  the  camp,  which  was  characteristic  of  him  through  all 
his  remaining  life.  In  those  experiences  he  laid  the  founda- 
tions of  sound  health  which  enabled  him  in  later  years  to 
carry  the  burdens  of  an  exacting  profession  and  to  win  the 
highest  measure  of  success  in  his  life's  work. 

In  high  school  Robert  Steele  was  not  what  might  be 
called  a  thorough  student.  His  father  wisely  discouraged 
any  such  devotion  to  books  as  might  be  prejudicial  to  health, 
and  it  was  understood  by  his  teachers  that  he  was  not  to 
be  crowded  in  his  school  work.  The  high  school  was  first 
organized  in  the  fall  of  1874  for  a  three  years'  course,  by 
Professor  Aaron  Gove.  The  principal  for  the  first  year 
was  a  Professor  Freeman,  and  for  the  other  two  years 
Professor  James  H.  Baker,  later  president  of  the  Colorado 
State  University.  Many  teachers  participated  in  the  instruc- 
tion of  the  class  of  '77,  but  among  them  all  none  had  a 
greater  influence,  as  a  teacher  and  as  an  individual,  than 
Miss  Nannie  O.  Smith,  who  later  became  Mrs.  D.  C.  Dodge. 


IN    LIFE  S    MORNING  43 

In  later  years  Judge  Steele  often  spoke  in  highest  terms  of 
her  work  as  teacher,  and  gratefully  acknowledged  the 
inspiration  and  help  he  had  received  from  her  counsel  and 
instruction.  Another  loving  teacher  was  Miss  Overton, 
who  later  married  Mr.  J.  S.  Brown.  There  were  seven 
students  that  graduated  in  this  class,  the  number  including, 
besides  Robert  Steele,  Mrs.  Mary  Peabody  Dickerson,  Mrs. 
Seraphine  Eppstein  Pisko,  Mrs.  Flora  L.  Bishop  Stevens, 
Mortimer  Arnold,  General  Irving  Hale  and  Frank  S. 
Woodbury. 

Robert  Steele  is  best  remembered  by  his  classmates  of 
the  old  Arapahoe  street  high  school  for  the  charm  of  his 
personality  and  for  his  ability  as  a  speaker.  He  had  all 
the  qualifications  for  a  great  orator  except  self-assertion, 
says  one  of  his  schoolmates,  and  some  of  his  declamations 
are  even  yet  clearly  remembered.  Even  then  his  sense  of 
justice  was  remarkable,  and  it  is  said  of  him  that  his  per- 
ception of  right  and  wrong  was  more  prompt  and  more 
infallible  than  that  of  any  of  those  with  whom  he  was 
associated. 

The  test  of  oratorical  ability  in  that  time  and  place 
was  the  Woodbury  prize,  established  by  R.  W.  Woodbury, 
founder  of  the  Denver  Times  and  father  of  Frank  Wood- 
bury of  the  class  of  '77.  The  third  Woodbury  contest,  held 
June  14,  1876,  was  won  by  Robert  Steele,  who  declaimed 
Webster's  famous  oration  in  reply  to  Hayne.  Upon  another 
occasion  when  Robert  Steele  was  a  speaker  in  a  contest. 
Doctor  Steele,  who  was  a  member  of  the  school  board,  was 
one  of  the  judges,  and  had  to  cast  the  deciding  vote  for  or 
against  his  son.  Robert  lost  the  medal,  but  one  of  the  other 
judges  was  so  pleased  with  his  effort  that  he  gave  a  special 
prize  to  Robert.  Many  years  after,  it  is  pleasing  to  record, 
under  somewhat  similar  circumstances.  Justice  Robert 
Steele  of  the  Supreme  Court  bestowed  a  special  prize  upon 


44  ROBERT    WILBUR    STEELE 

the  granddaughter  of  that  favorable  member  of  the  school 
board. 

A  classmate  of  the  high  school  tells  the  following  story 
illustrative  of  a  boy's  mischievous  logic :  "A  circus  parade 
was  passing  the  high  school  and  the  pupils  were  craning 
their  necks  to  look  out  the  window.  Professor  Baker,  think- 
ing to  suppress  this,  suggested  sarcastically  that  Steele  could 
see  better  if  he  would  go  to  the  window.  Steele  thanked  the 
professor  cordially,  went  to  the  window,  and  saw  the  whole 
parade." 

Although  not  a  close  student,  Robert  Steele  at  this 
time  began  to  show  more  than  a  common  fondness  for  books, 
and  while  yet  in  the  high  school  began  the  collection  of  a 
personal  library  which  later  served  as  the  source  of  learning 
and  culture  as  well  as  a  favorite  occupation  for  his  leisure 
hours.  History,  of  the  United  States  and  especially  of  the 
West;  political  biography,  and  volumes  upon  the  theory 
of  government  and  the  sources  and  development  of  law, 
were  the  classes  of  books  he  liked  most.  He  was  not  oblivi- 
ous to  fiction  and  poetry,  but  his  choice  in  those  lines  was 
for  the  best  masters  of  literature,  and  he  read  them  for 
mental  pleasure  and  refreshment  rather  than  for  stimulation 
and  development. 

His  improving  health  and  growing  fondness  for  out- 
door life  was  evidenced  in  that  period  by  his  membership 
in  a  semi-professional  ball  team,  the  only  uniformed  club 
in  Denver,  known  as  the  Brown  Stockings.  His  position 
was  that  of  left  fielder,  in  which  he  distinguished  himself 
honorably  and  often  successfully  in  encounters  with  similar 
teams  from  Cheyenne  and  other  cities. 

Chief  of  the  characteristics  of  these  school  days,  how- 
ever, was  his  interest  in  politics,  which  was  coupled  with 
that  facility  of  making  friends  which  is  at  once  the  prime 
need  and  the  unmistakable  mark  of  the  political  leader  of 


Dr.  Henry  King  Steele 


IN  life's  morning  45 

men.  Sincerely  democratic  in  his  thought  and  attitude 
toward  others,  affable  to  all  of  whatever  rank  or  station, 
just  in  his  judgments  yet  always  willing  to  find  an  excuse 
for  the  weak  or  misguided,  he  had  all  the  dangerous 
weapons  of  the  demagogue,  yet  without  any  of  the  dema- 
gogue's disposition  to  use  them  wrongfully.  He  was  inter- 
ested, though  not  so  profoundly  as  in  later  years,  in  the 
fundamental  principles  and  problems  of  government;  he 
had  a  lively  and  active  interest  in  men  as  men;  and  he  was 
also  interested  in  the  practical  problems  of  political  organi- 
zation and  in  the  results  that  may  be  accomplished  by  the 
union  and  co-ordination  of  individuals  in  political  parties. 
He  was  "in  politics"  many  years  before  casting  his  first 
vote,  and  he  not  only  had  an  inside  knov/ledge  of  what  was 
going  on,  but  his  opinions  and  his  suggestions  began  to 
receive  consideration  at  an  age  when  most  boys  are  getting 
their  ideas  of  politics  from  the  civil  government  text  books 
of  the  high  school. 

Robert  Steele's  oration,  delivered  upon  the  occasion  of 
his  graduation  from  high  school,  is  still  preserved.  Its 
subject  was  "Red  Tape,"  and  persons  then  present  now 
recall  the  effect  produced  by  its  delivery.  A  few  sentences 
here  quoted  will  serve  to  give  some  idea  of  his  mental  devel- 
opment at  that  time  and  of  his  processes  of  thought: 

"System  is  the  perfection  of  all  law.  *  *  *  While  we 
humbly  bow  to  the  irrevocable  laws  of  God  and  submit  with  cheer- 
ful obedience  as  lawful  subjects  of  His  power,  we  are  not  prepared 
to  say  that  all  human  laws  are  for  the  best  and  should  not  be 
changed  or  violated.  Our  advancement  in  science,  our  progress  in 
knowledge,  the  intellectual  development  of  the  age  demand  a  change 
in  many  things,  and  what  we  think  are  facts  and  theories  firm  and 
unchangeable  may  be  entirely  subverted  as  the  light  of  science  is 
reflected  upon  them.  *  *  *  The  manner  of  conducting  the  busi- 
ness of  the  government  of  the  United  States  is  belittling  to  states- 
manship, discreditable  to  all  parties  and  injurious  to  all  politics; 
for  the  officialism  of  our  government,  besides  being  stupid  and 
habitually  slow,  is  corrupt.  *  *  *  Let  us  instruct  our  Congress- 
men, then,  to  aid  him  [President  Hayes]  in  his  noble  work  of  reform 


46  ROBERT    WILBUR    STEELE 

and  in  their  halls  consecrated  to  the  Union  to  'perform  a  solemn 
lustration.'  Let  them  wash  the  slime  of  partyism  and  corruption 
from  their  hands.  Let  them  dissolve  all  party  ties  and  free  the 
country  from  the  poisonous  sting  of  ring  hirelings;  and,  finally,  let 
them  close  forever  the  approaches  to  internal  feuds,  and  on  their 
altars,  in  the  presence  of  that  image  of  the  Father  of  His  Countr}'^ 
that  looks  down  upon  them,  swear  to  preserve  honorable  peace  with 
all  the  world  and  eternal  brotherhood  with  each  other." 

In  choosing  the  legal  profession  for  his  life's  work 
Robert  Steele  was  following  both  his  natural  inclination  and 
the  logic  of  circumstances.  Heredity  might  have  led  him 
either  toward  medicine  or  the  law,  but  he  lacked  the  robust 
physique  necessary  to  success  as  a  practising  physician  and 
surgeon.  His  temper  of  mind  and  his  taste  in  reading 
pointed  directly  toward  legal  study.  His  ability  as  a  speaker 
was  another  important  qualification,  and,  most  of  all,  his 
inclination  toward  politics  and  his  capability  for  public  life, 
as  evidenced  by  his  extraordinary  power  of  winning  the 
approval  and  confidence  of  those  with  whom  he  came  in 
contact,  inclined  him  toward  the  profession  that  is  in 
America  the  most  usual  avenue  toward  preferment  and 
success  in  public  life.  There  must  have  been  some  mani- 
festation of  this  preference  previous  to  his  graduation  from 
high  school,  since  it  is  remembered  that  Judge  E.  T.  Wells 
had  already  expressed  to  Doctor  Steele  a  willingness  to 
receive  Robert  as  a  student  in  his  office.  A  short  time  later 
Judge  Wells  resigned  his  position  on  the  bench  and  resumed 
his  practice,  and  Robert  Steele  began  the  usual  course  of 
reading  to  prepare  himself  for  admission  to  the  bar.  At 
that  time  the  firm  of  Wells,  Smith  &  Macon  was  recognized 
as  one  of  the  leaders  of  the  Colorado  bar.  Judge  Wells 
having  as  his  partners  Edmond  L.  Smith  and  Thomas 
Macon. 

The  first  taste  of  legal  lore  was  evidently  pleasing  to 
the  student,  for  the  following  year  he  entered  the  law  school 
of   Columbian    University    (now   the    George   Washington 


IN    LIFE  S    MORNING  47 

University)  of  Washington,  D.  C.  Before  the  end  of  his 
second  year  in  the  East,  however,  it  was  thought  advisable, 
on  account  of  that  unfavorable  climate,  that  lie  should 
return  to  Colorado.  A  simple  story  is  told  of  his  residence 
in  Washington  which  is  thoroughly  characteristic  of  the 
humanity  and  unselfishness  of  his  nature.  His  boarding 
place  in  that  city  was  far  from  perfection,  but  it  was  con- 
ducted by  a  widow  who  was  having  a  hard  time  to  make 
a  living  for  herself  and  her  children.  And  Robert  Steele 
put  up  with  the  delinquencies  and  discomforts  of  her  board 
and  lodging  rather  than  add  to  the  burden  she  was  carrying. 

Returning  to  Colorado  in  1879,  he  entered  again  the 
law  office  of  Wells,  Smith  &  Macon,  and  devoted  himself 
to  his  study  with  such  attention  that  in  1881  he  was  admitted 
to  the  bar.  One  who  knew  him  in  that  stage  of  his  career 
many  years  later  thus  expressed  his  memories  :* 

"I  recall  his  studious  habits  and  modest  demeanor  and 
became  much  attached  to  him  because  he  was  an  uncommon 
young  man,  always  a  gentleman — such  as  a  correct  under- 
standing of  that  word  always  implies — and  always  striving 
to  perfect  himself  in  that  science,  law,  which  is  most  exact- 
ing of  old  and  )^oung  members  of  the  bar.  That  for  which, 
perhaps,  Judge  Steele  has  been  most  noticeable  was  judicial 
courage  and  integrity;  painstaking,  unprejudiced  investiga- 
tion of  all  questions  before  the  court ;  always  profoundly 
impressed  with  the  great  duties  imposed  upon  a  judge  of 
our  highest  court.  Political  eminence  and  professional  fame 
disappear  within  a  short  time,  like  the  mists  of  the  morning. 
Nothing  of  character  is  permanent  but  virtue  and  profes- 
sional worth.     Those  remain." 

No  young  attorney  of  Denver  ever  entered  the  open 
door  of  his  chosen  profession  with  brighter  prospects  than 
Robert  W.  Steele.     He  had,  as  has  been  shown,  very  many 


*Judge  D.  P.  Wilson. 


48  ROBERT    WILBUR    STEELE 

of  the  qualifications  of  a  brilliant  and  successful  lawyer  and 
politician.  He  was  a  most  charming  and  effective  speaker, 
his  circle  of  friends  and  acquaintances  included  practically 
everyone  worth  knowing  in  the  Denver  of  that  time,  and 
many  of  the  most  prominent  and  most  influential  men  of 
the  city  felt  a  double  interest  in  his  welfare,  for  his  father's 
sake  as  well  as  for  his  own.  But  the  service  that  Robert 
Steele  was  to  render  to  the  state  and  its  people  was  not  to 
be  that  of  the  attorney  in  civil  or  criminal  cases.  A  wider 
and  higher  mission  was  in  store  for  him,  and  a  kindly  fate, 
blocking  the  path  of  progress  in  the  natural  line  of  his  pro- 
fession, led  him  by  a  longer  way  through  the  experiences 
necessary  to  his  development  and  brought  him  ultimately  to 
the  position  that  he  was  destined  to  occupy. 

To  some  of  his  friends,  who  believed  that  they  knew 
what  was  best  for  the  young  attorney  and  who  hoped  to 
see  him  rise  rapidly  as  well  as  highly  in  his  profession,  it 
was  a  distinct  disappointment  when,  in  1881,  soon  after  his 
admission  to  the  bar,  he  received  and  accepted  an  appoint- 
ment, by  the  Board  of  County  Commissioners,  as  clerk  of 
the  County  Court  of  Arapahoe  County,  of  which  Denver 
was  then  the  county  seat.  The  somewhat  monotonous  duties 
of  this  clerical  position  mainly  occupied  his  attention  for 
three  uneventful  years.  During  this  time  he  continued  his 
reading  of  law,  history  and  general  literature,  he  displayed 
an  active  interest  in  public  affairs,  and  he  never  ceased  to 
concern  himself  in  those  political  activities  that  are  at  once 
the  implements  of  statecraft  and  the  instruments  of  govern- 
ment. 

In  1884  he  resigned  his  position  as  clerk  of  the  County 
Court  in  order  to  engage  in  the  practice  of  his  profession. 


CHAPTER  IV 

THE  BUILDERS 

Every  intelligent  citizen  of  the  New  West  in  America 
is  more  or  less  consciously  a  Builder.  The  charms  of  the 
wilderness  and  of  the  frontier  have  always  operated  to  draw 
bold  and  adventurous  spirits  toward  the  untrodden  parts  of 
the  earth  and  have  been  among  the  strongest  influences  for 
the  extension  of  civilization  and  the  subduing  of  the  conti- 
nents to  the  uses  of  man.  But  the  nineteenth  century 
brought  to  the  men  of  western  America  a  fresh  and  a  higher 
civic  conscience,  a  stimulating  sentiment  of  responsibility 
for  laying  the  foundations  of  politics  and  industry  upon 
which  was  to  be  erected  the  structure  of  the  commonwealth 
of  the  future.  The  great  inventions  of  the  age  made  it 
possible  to  forward  development  at  a  rate  never  before 
known,  and  at  the  same  time  they  impressed  each  successive 
step  of  that  development  upon  the  minds  of  the  people.  The 
states  and  nations  of  Europe  were  evolved  by  centuries  of 
unconscious  and  often  purposeless  grov/th ;  the  states  of 
western  America  were  built  by  decades  of  strenuous  effort, 
consciously  directed  toward  those  ideals  of  "progress  and 
prosperity"  that  were  the  purpose  of  "Booster"  activity 
everywhere. 

At  no  other  time  and  in  no  other  place  was  this  con- 
sciousness of  civic  duty  more  keenly  felt  than  in  Colorado 
in  the  last  quarter  of  the  nineteenth  century.  The  young 
man  who  came  to  maturity  in  Denver  at  that  time  could 
not  fail  to  be  impressed  with  the  material  advantages  of 
the  state,  its  superior  climate,  its  wealth  of  natural  resources 
and  their  even  more  marvelous  variety,  and  to  share  in  the 
conviction,  which  possessed  the  thought  of  the  entire  com- 


50  ROBERT    WILBUR   STEELE 

munity,  that  Colorado  is  destined  to  extraordinary  accom- 
plishments in  mining,  in  manufacturing,  in  agriculture,  in 
commerce  and  in  all  the  activities  of  a  highly  energized, 
intelligent,  prosperous  and  progressive  state  of  the  American 
Union. 

To  such  a  young  man  as  Robert  Steele,  the  descendant 
of  the  successful  pioneers  of  older  and  vanished  frontiers, 
the  opportunities  of  the  New  West  spoke  with  paramount 
force.  He  saw  clearly  the  opportunity  to  win  for  himself, 
in  the  manner  of  employment  to  which  he  was  best  adapted, 
those  personal  results  that  seem  desirable  to  every  intelli- 
gent human  being — home,  family  and  fortune ;  he  saw  the 
opportunity  to  achieve,  in  his  chosen  career,  unhampered  by 
the  restrictions  of  an  older  civilization,  those  honorable 
rewards  of  sincere  and  successful  effort  that  are  the  highest 
prizes  of  republican  citizenship;  he  saw  the  opportunity, 
higher  than  personal  fortune,  greater  than  personal  fame, 
to  have  a  part  in  securing  the  happiness  and  well-being  of 
future  generations  and  to  make  himself  inseparably  a  por- 
tion of  the  heritage  of  liberty — an  opportunity  that  the  state 
builders  of  Colorado  were  preparing  to  hand  down  to  their 
children  and  grandchildren. 

Modest  as  he  was,  with  an  inherited  aversion  to  self- 
assertion  or  self-display,  and  with  a  characteristic  distrust 
of  his  own  personal  merit  and  ability,  there  is  no  ground 
for  the  belief  that  Robert  Steele  had  any  prevision  of  the 
height  to  which  he  would  ultimately  reach  in  the  regard  of 
his  fellow  citizens  and  in  the  service  he  would  render  to  the 
state.  But  there  is  no  doubt  whatever  of  his  loyalty  to 
Colorado,  of  his  sincere  conviction  of  her  surpassing  merits 
as  a  place  of  residence,  or  of  his  intelligent  appreciation  of 
the  material  opportunities  for  business  and  professional 
activities;  and  it  is  even  more  certain  that  very  early  in  his 
career  he  fixed,  as  the  supreme  goal  of  his  life-purpose,  the 


THE    BUILDERS  5I 

welfare  of  the  people  rather  than  any  personal  gain  of 
wealth,  position  or  fame  for  himself. 

Already  an  independent  m.oney  earner  by  his  own  choice 
since  early  school  days,  he  now  set  himself  resolutely  to  the 
task  of  establishing  his  position  in  the  world,  to  the  primary 
duties  of  manhood  and  of  citizenship. 

Throughout  his  high-school  days  Robert  Steele  had 
maintained  a  reputation  of  indifference  toward  the  other  sex. 
He  had  passed  his  hours  of  leisure  in  the  circles  of  politics 
rather  than  in  those  of  society,  and  had  preferred  the  amuse- 
ments and  pleasures  of  the  open  field  to  those  of  the  parlor 
and  ballroom.  In  the  summer  of  1883  he  became  engaged 
to  Miss  Anna  B.  Truax,  daughter  of  Perry  B.  Truax,  of 
Toledo,  Ohio,  who  was  at  that  time  visiting  relatives  in 
Denver.  Their  marriage  followed  on  February  28,  1884, 
at  Toledo.  Originally  a  "love  match,"  marriage  brought 
to  them  neither  disillusion  nor  bitterness.  The  young  bride 
was  most  cordially  welcomed  to  the  circle  of  relatives  and 
friends  in  Denver,  and  home  life  for  Robert  Steele  began 
under  favorable  auspices  which  the  future  nowise  disproved. 

Two  sons,  Henry  and  William,  and  a  daughter, 
Frances  Edwina,  died  in  early  childhood,  while  another 
son,  Robert,  born  in  1891,  and  a  daughter,  Jane,  are  now 
living  in  Denver. 

The  routine  of  clerical  duties  in  the  County  Court, 
however  faithfully  performed,  failed  to  satisfy  Robert  Steele 
long  after  his  marriage.  In  the  fall  of  1884  he  resigned 
that  position,  and,  forming  a  partnership  with  William  H. 
Malone,  under  the  firm  name  of  Steele  &  Malone,  he  entered 
upon  the  practice  of  law.  The  first  office  of  the  firm  was  in 
the  Tabor  Opera  House,  at  that  time  easily  the  finest  busi- 
ness block  of  the  Rocky  Mountain  region,  but  the  office  was 
later  removed  to  the  Jacobson  Building,  and  still  later  to 
the  Beckwith  Building,  on  the  north  side  of  Champa  street. 


52  ROBERT    WILBUR    STEELE 

between  Sixteenth  and  Seventeenth  streets.  For  a  number 
of  years  the  Beckwith  Building  was  owned  by  the  firm  and 
was  occupied  by  it  for  office  purposes  until  Robert  Steele 
was  removed  from  private  law  practice  by  his  election  to  the 
position  of  district  attorney. 

The  new  firm  was  rapidly  successful  and  soon  came  to 
be  regarded  as  ranking  high  among  the  younger  attorneys 
of  the  city  and  the  state.  One  of  the  earliest  of  its  cases 
involved  important  property  rights  in  both  water  and  land 
at  Sloan's  Lake,  near  Denver.  The  case  was  won  by  Steele 
&  Malone  upon  the  first  decision,  but  upon  a  rehearing  the 
decision  was  reversed.  Possibly  as  a  result  of  the  effort 
devoted  to  this  case  and  the  interest  it  aroused,  the  firm  soon 
came  to  give  special  attention  to  land  cases.  This  interest 
was  further  intensified  in  the  second  year  of  his  practice 
(1885),  when  Robert  Steele  received  the  appointment  as 
land  attorney  for  Colorado  for  the  Atchison,  Topeka  & 
Santa  Fe  Railroad  Company. 

The  Santa  Fe  railroad  had  crossed  the  Colorado  boun- 
dary in  1873,  its  terminus  being  for  a  time  at  the  town  of 
Grenada,  Colo.  In  1875  it  was  extended  to  La  Junta,  appro- 
priately christened  as  the  junction  point  of  the  Colorado 
branch  with  the  main  line  extending  westward  through  New 
Mexico.  Continuing  up  the  Arkansas  Valley,  the  Colorado 
division  reached  Pueblo  February  26,  1876,  and  the  exten- 
sion northward  from  Pueblo  to  Denver  was  completed  in 
1887.  The  town  of  Rocky  Ford  had  been  founded  in  1871 
by  George  W.  Swink,  for  many  years  one  of  the  leading 
men  of  the  Arkansas  Valley  and  a  successful  pioneer  in  the 
development  of  that  region.  There  had  been  already  some 
agriculture  under  irrigation  at  Garden  City,  Kansas,  seventy 
miles  east  of  the  Colorado  line,  and  in  1886  the  conditions 
seemed  favorable  for  a  rapid  growth  in  wealth  and  popula- 
tion of  the  Arkansas  Valley  in  Colorado  from  the  Kansas 
boundary  to  the  mountains,  at  Canon  City. 


THE    BUILDERS  53 

As  land  attorney  for  the  railroad  company,  Robert 
Steele  was  in  close  touch  with  the  enterprises  started  or 
planned  in  that  region,  and  in  1886,  when  it  was  judged 
advisable  to  establish  a  new  town  in  the  valley  between 
Garden  City  and  Rocky  Ford,  he  was  named  as  one  of  the 
incorporators,  the  others  being  J.  E.  Frost  of  Topeka,  Kans., 
I.  R.  Holmes  of  Garden  City,  J.  E.  Godding  of  Lamar  and 
William  Malone  of  Denver.  The  name  of  the  town  was 
chosen  by  Robert  Steele,  and  in  honoring  the  then  secretary 
of  the  interior,  Hon.  J.  Q.  C.  Lamar,  the  shrewd  attorney 
was  not  overlooking  the  fact  that,  besides  choosing  a  good 
and  euphonious  name  for  the  town,  he  was  getting  in  line 
for  some  first-class  advertising.  The  town  company  was 
organized  with  Col.  A.  S.  Johnson  as  president  and  was  very 
promptly  successful.  By  an  article  appearing  in  The  Prairie 
Farmer  in  May,  1886,  and  written  by  Orange  Judd,  we  are 
informed : 

"Only  five  short  weeks  ago  there  was  not  a  sign  of  human 
habitation  in  sight  save  a  single  log  building  down  by  the  cotton- 
wood  belt  that  fringes  the  stream.  From  the  river  southward  a 
desert-looking  plain,  partly  covered  by  the  short  buffalo  grass, 
extended  up  a  gentle  incline  two  or  three  miles.  The  land  was 
mainly  open  to  pre-emption  and  homesteading.  Today  there  are 
five  and  twenty  buildings  completed  or  nearly  so;  many  others  are 
begun  and  active  preparations  are  making  to  erect  a  large  number 
more.  Tens  of  thousands  of  dollars'  worth  of  lots  have  been  sold, 
$400  to  $600  and  upwards  being  paid  for  a  plat  with  a  twenty-five 
foot  frontage  on  the  principal  street.  *  *  *  The  land  on  all 
sides  is  held  at  a  premium  of  $500  to  $1,000  per  quarter  section, 
which  the  owners  'filed  upon'  within  a  month.  Twenty-five  foot 
lots  in  town  are  jumping  up  a  hundred  dollars  a  day.  *  *  * 
There  is  no  question  as  to  the  substantial  value  of  property  in  that 
new  Colorado  wonder.  It  lies  in  the  heart  of  a  good  country,  far 
enough  from  any  other  large  city  and  having  all  the  advantages  to 
make  it  great.  It  will  be  a  second  Garden  City,  and  this  is  the 
judgment  of  business  men  who  have  visited  this  part  of  the  country. 
He  who  owns  property  in  Lamar  has  'old  wheat  in  the  mill.'  " 

The  progress  of  a  quarter  of  a  century  has  justified  the 
expectations  of  the  founders  of  Lamar.     Thanks  to  its  cen- 


54  ROBERT    WILBUR    STEELE 

tral  location,  the  energy  of  its  friends  and  possibly  to  the 
benevolence  of  the  high  official  whose  name  it  bore,  Lamar 
promptly  became  the  seat  of  the  United  States  land  office 
for  the  lower  Arkansas  Valley  in  Colorado.  In  April,  1889, 
by  act  of  the  general  assembly  it  was  established  as  the 
county  seat  of  the  new  county  of  Prowers,  and  has  continued 
ever  since  its  development  as  one  of  the  best  and  most 
uniformly  prosperous  agricultural  towns  of  Colorado. 

The  active  interest  of  Robert  Steele  was  not,  however, 
confined  to  Lamar.  Some  of  the  best  land  opportunities  of 
the  valley  were  found  to  exist  in  the  western  part  of  old 
Bent  County,  which  was  established  as  Otero  County  with 
the  county  seat  at  La  Junta,  in  the  same  year  that  Prowers 
County  was  created,  and  the  firm  of  Steele  &  Malone  became 
one  of  the  large  land  owners  in  the  vicinity  of  Rocky  Ford. 

In  1885  Robert  Steele  had  bought  the  lots  at  the  south- 
west corner  of  Eleventh  avenue  (then  known  as  Deer  street) 
and  Washington  street,  in  Denver,  and  promptly  began  the 
building  of  a  residence.  At  that  time  the  site  chosen  was 
well  outside  the  city,  and  even  while  the  carpenters  were  at 
work  the  cowboys  were  herding  cattle  in  the  vicinity.  Yet 
so  rapid  was  the  growth  of  the  city  that  when  the  house  was 
completed,  in  1886,  the  street  car  ran  as  far  as  that  corner, 
and  the  city  water  and  gas  services  were  ready  for  the  use 
of  its  occupants.  This  quick  reward  for  foresight  and  good 
business  judgment  came  to  one  who  had  steadily  professed 
and  maintained  his  faith  in  the  future  of  Denver.  His 
father.  Doctor  Steele,  promptly  after  his  arrival  had  linked 
his  fortunes  with  the  welfare  of  the  city.  The  old  Steele 
residence,  at  the  eastern  corner  of  Sixteenth  and  Stout  streets, 
stood  for  many  years  in  the  heart  of  the  residence  district 
of  Denver.  That  dwelling  gave  place  in  1882  to  a  two- 
story  business  block,  to  which  a  third  story  was  subsequently 
added,  and  this  later  structure  still  holds  its  place  in  the 


THE   BUILDERS  $$ 

heart  of  the  business  section  of  modern  Denver.  Robert 
Steele  fully  approved  his  father's  views  as  to  the  future 
growth  and  stability  of  Denver's  real  estate  values,  and 
strongly  expressed  his  convictions  regarding  the  political 
and  commercial  capital  of  so  rich  and  so  extensive  a  terri- 
tory. At  a  later  time,  when  the  opportunity  came,  as  agent 
for  his  father,  to  dispose  of  that  property,  he  gave  further 
proof  of  the  sincerity  of  his  opinions  by  using  his  influence 
to  retain  its  ownership,  in  spite  of  the  unfavorable  conditions 
then  existing — a  judgment  fully  justified  by  subsequent 
events. 

In  1888  Robert  Steele's  growing  familiarity  with  the 
legal  side  of  the  land  business  brought  to  him  one  of  those 
exceptional  opportunities  that  sometimes  arise  in  the  newer 
states.  In  order  to  promote  the  construction  of  the  trans- 
continental railroads,  congress  had  made  very  liberal  land 
grants  to  the  companies,  giving  them  alternate  sections  of 
land  for  a  considerable  distance  on  both  sides  of  their  tracks. 
Although  this  land  was  then  a  part  of  the  wilderness  and 
much  of  it  lay  within  the  borders  of  the  so-called  "Great 
American  desert,"  it  rapidly  became  of  great  value  and 
finally  far  surpassed  the  entire  cost  of  building  those  rail- 
roads. These  lands  were,  for  the  most  part,  offered  by  the 
railroad  companies  without  delay  at  reasonable  prices  to 
settlers,  and  quickly  passed  into  individual  ownership.  If, 
however,  at  the  time  these  grants  were  made,  any  portion  of 
these  lands  was  in  the  actual  and  lawful  possession  of  indi- 
vidual owners,  it  did  not,  of  course,  pass  to  the  railroad 
companies ;  and  in  the  important  Dunmire  case  the  Supreme 
Court  of  the  United  States  decided  that  where  such  tracts 
had  once  been  entered  upon  and  claimed  by  settlers,  who  had 
subsequently  abandoned  or  relinquished  them,  the  land 
grant  companies  were  not  entitled  to  them.  As  a  result  of 
this  decision,  a  cloud  was  thrown  upon  the  title  to  much 


56  ROBERT    WILBUR    STEELE 

property  in  the  land  grant  states,  and  the  work  of  the  land 
lawyers  was  greatly  increased,  both  before  and  after  con- 
gress enacted  a  law  giving  validity  to  the  title  conferred  by 
the  companies  upon  genuine  and  bona  fide  purchasers. 

There  were  some  lands  in  the  vicinity  of  Denver  that 
belonged  in  the  class  that  was  not  conveyed  by  congressional 
grant  to  the  Union  Pacific  Railroad  Company  on  account  of 
having  been  previously  subjected  to  individual  appropria- 
tion, although  they  had  been  abandoned.  Upon  one  of  these 
lots  of  land,  consisting  of  160  acres,  the  southeast  quarter 
of  section  17,  township  4  south  of  range  67  west  of  the  Sixth 
principal  meridian,  Robert  Steele  made  his  filing  according 
to  the  land  laws  and  established  his  residence  thereon  with 
the  required  improvements.  For  the  time  fixed  by  the  law 
this  was  his  home,  genuinely  and  in  good  faith,  and, 
although  he  maintained  his  office  and  law  business  in  Den- 
ver, he  carried  forward  the  improvement  and  cultivation  of 
the  ranch,  gaining  benefit  to  his  health  not  only  from  the 
manual  work  he  v/as  able  to  perform,  but  also  from  the  daily 
trips  between  the  ranch  and  the  town.  At  the  time  his  ranch 
cabin  was  built,  there  was  no  building  within  a  distance  of 
a  mile  and  a  half,  and  the  prairie  sod  was  still  unturned. 
In  July,  1892,  when  the  officials  of  the  Denver  land  office 
were  notified  by  the  land  commissioner  at  Washington  that 
the  homestead  entry  of  Robert  W.  Steele  had  been  finally 
approved  for  patent,  this  land  was  "conservatively  esti- 
mated," according  to  a  current  newspaper  article  of  that 
time,  to  be  worth  $100,000.  It  extends  southward  from  the 
line  of  Exposition  street  to  the  line  of  Mississippi  street  and 
westward  from  Fairmount  Cemetery,  and  seems  destined  to 
become  a  part  of  the  fully  occupied  residence  district  of  the 
city.  Another  tract  of  land,  even  nearer  the  city  and  even 
more  valuable,  was  secured  by  one  of  Robert  Steele's  asso- 
ciates.    Along  the  eastern  side  of  the  Steele  ranch  extends 


THE    BUILDERS  57 

Hyde  Park  avenue,  another  mark  of  his  tracing,  for  he 
opened  this  roadway  freely  and  without  compulsioo  a.«  a 
matter  of  convenience  for  his  neighbors. 

The  members  of  the  firm  of  Steele  &  Malone  soon 
came  to  be  regarded  as  experts  in  land  law  practice  and  their 
business  increased  rapidly.  Many  of  the  settlers  upon  the 
railroad  grant  lands  required  their  services  in  clearing  the 
cloud  that  had  been  cast  upon  their  titles  by  the  Dunmire 
decision,  and  this  business  necessitated  frequent  trips  to  the 
general  land  office  at  Washington.  The  esteem  in  which 
Attorney  Steele  was  held  at  this  time  by  men  high  in  the 
federal  government  is  indicated  by  the  story  told  of  a  certain 
United  States  senator  who  introduced  Robert  Steele  and  a 
lawyer  of  another  firm  who  was  associated  with  him  in  a 
particular  case  to  the  land  commissioner  with  these  words : 
"Mr.  Commissioner,  whatever  these  young  men  tell  you  as 
a  fact,  you  may  depend  upon  as  absolutely  true."  The 
advantage  of  such  a  recommendation  from  such  a  source  in 
such  a  quarter  is  shown  by  the  fact  that  in  this  case  a  patent 
was  issued  within  thirty  minutes  of  the  time  the  final  proof 
was  presented.  And  the  land  office  is  popularly  supposed  to 
be  one  of  the  most  leisurely  branches  of  the  government. 

In  the  fall  of  1890,  Robert  Steele  was  elected  chairman 
of  the  Republican  central  committee  of  Arapahoe  County. 
The  frequent  statements  made  by  him  to  personal  friends 
and  political  associates  make  it  certain  that  he  did  not  choose 
the  path  of  politics  as  the  open  highway  of  wealth  or  per- 
sonal advancement.  For  seven  years  he  had  taken  no  promi- 
nent part  in  political  aifairs  and  had  devoted  himself  strictly 
to  his  home  and  his  business.  But  he  could  not  suppress 
either  his  interest  in  political  questions  or  his  liking  for 
political  activities.  As  early  as  1884  he  was  involved  in  a 
small  controversy  regarding  some  statement  said  to  have 
been  made  by  Senator  N.  P.  Hill  concerning  the  appoint- 


58  ROBERT    WILBUR    STEELE 

ment  of  a  Colorado  postmaster,  but  from  the  time  of  his 
retirement  from  the  position  of  clerk  of  the  county  court  his 
effort  was  to  keep  out  of  politics  rather  than  to  engage  in 
such  activity.  In  1890,  however,  he  yielded  to  the  persua- 
sion of  his  friends  and  assumed  the  leadership  of  his  party 
for  Arapahoe  County.  He  was  the  acknowledged  choice  of 
the  regular  Republican  county  organization  for  chairman, 
but  factional  feeling  in  that  year  ran  so  high  that  there  had 
been  a  bolting  convention  and  a  rival  county  chairman  had 
been  appointed.  The  first  act  of  the  campaign  in  the  fall 
of  1891  was  a  letter  addressed  by  Chairman  Steele  to  Chair- 
man Theodore  H.  Thomas,  of  what  were  known  as  the 
Turner  Hall  Republicans,  proposing  a  compromise  upon  the 
basis  of  the  disbanding  of  the  Turner  Hall  organization,  the 
holding  of  precinct  primaries  to  choose  delegates  to  the 
Republican  county  convention,  the  election  at  the  primaries 
of  an  entire  county  central  committee,  and  representation  of 
the  minority  faction  by  judges  at  the  primary  polls.  This 
proposition  being  approved  as  eminently  fair,  reasonable  and 
conciliatory,  it  was  promptly  accepted  by  Chairman  Thomas 
and  was  ratified  in  due  course  by  the  Turner  Hall  committee 
and  by  the  Republican  county  committee  at  its  meeting  held 
September  19,  1891.  Chairman  Steele  then  stated  the  pur- 
pose of  his  proposition  to  the  committee  as  follows : 

"It  is  not  necessary  for  me  to  rehearse  to  30U  the  differences 
which  arose  in  the  party  last  fall  and  which  resulted  disastrously 
to  the  party.  For  the  purpose  of  harmonizing  all  the  differences, 
and  for  the  good  of  the  party,  your  chairman  two  weeks  ago 
addressed  to  the  chairman  of  the  opposition  a  letter  in  which  he 
promised  several  things.  He  promised  that  precinct  primaries  be 
held  in  each  precinct  in  the  county;  that  at  such  primaries  there  be 
elected  a  member  of  the  county  central  committee  and  that  that 
committee  be  requested  at  its  first  meeting  after  such  elections  to 
select  a  chairman ;  they  to  serve  the  party  for  one  j^ear. 

"It  was  for  the  purpose  of  healing  the  differences  in  the  party 
and  in  order  that  we  might  rebuke  the  opposition  which  has  gained 
considerable  power  in  the  count}-  through  the  existence  of  these 
differences.    It  was  for  the  purpose  of  harmonizing  the  party  before 


THE   BUILDERS  59 

the  coming  of  a  national  campaign  in  which  it  might  be  that  Mr. 
Blaine  should  decide  to  be  the  candidate,  and  it  might  be  the  wish 
of  the  Republicans  of  this  state  that  he  receive  their  vote  for  the 
highest  office  in  the  gift  of  the  Republican  party." 

The  precinct  primaries  were  held  according  to  agree- 
ment on  September  24,  and  resulted  in  the  choice  of  dele- 
gates to  the  county  convention  who  were  unquestionably  the 
selection  of  the  Republicans  of  the  county.  The  county 
convention  was  held  on  September  26,  and  Chairman  Robert 
Steele  opened  its  proceedings  with  these  words : 

"Gentlemen  of  the  Convention: 

"It  has  been  the  one  endeavor  of  your  county  central  committee 
to  provide  honest,  fair  and  decent  primaries  in  the  precincts  of  this 
cotinty.  We  believe  that  we  have  done  so,  and  we  believe  that  you 
came  from  Republican  neighborhoods  of  this  county  to  express  the 
will  of  the  Republicans  in  convention.  If  you  nominate  a  good, 
clean  ticket  at  this  convention,  there  is  no  doubt  about  its  election 
in  November." 

The  name  of  Robert  Steele  had  been  mentioned  on  the 
eve  of  the  convention  as  a  possible  candidate  for  the  office 
of  district  attorney,  but  he  was  not  the  leading  candidate. 
So  general,  however,  was  the  approval  of  his  success  in 
restoring  party  harmony  that,  after  he  had  been  nominated 
by  R.  D.  Thompson  and  his  nomination  had  been  seconded 
by  W.  H.  Griffith,  before  the  completion  of  the  first  ballot 
all  opposition  was  withdrawn  and  he  was  chosen  by  accla- 
mation. 

So  far  in  his  political  acts  and  opinions  Robert  Steele 
had  been  a  Republican  partisan.  But  it  is  interesting  to 
note  that  in  this,  his  first  campaign  for  an  elective  office,  the 
issues  were  not  drawn  upon  strictly  partisan  lines.  The 
wise,  conciliatory  and  successful  move  toward  party  har- 
mony, which  won  him  the  nomination,  involved  distinctly 
that  principle  of  popular  self-rule  in  politics  and  in  govern- 
ment which  was  to  play  so  important  a  part  in  the  contro- 
versies of  later  years ;  so  while  he  was  the  regular  candidate 


60  ROBERT    WILBUR    STEELE 

of  the  regular  party  organization  he  was,  to  a  degree 
unusual  for  that  day,  the  popular  candidate  rather  than  the 
machine  candidate. 

In  the  campaign  that  followed  his  nomination  he  took 
an  active  part,  making  speeches  in  such  remote  country 
towns  as  Highlands,  Harmon  and  Colfax,  all  now  included 
within  the  city  limits  of  Denver.  He  was  regarded  as  the 
candidate  of  the  "law  and  order"  part  of  the  community, 
while  the  Democratic  candidate  was  attacked  and  defended 
as  the  candidate  of  the  "liberal  element" ;  thus  injecting 
another  non-partisan  issue  into  the  campaign.  Additional 
evidence  of  the  growing  spirit  of  revolt  against  narrow 
partisanship  was  given,  a  few  days  after  his  nomination, 
by  the  Republican  state  platform,  adopted  at  Glenwood 
Springs,  which  declared  in  its  opening  sentences:  "While 
not  agreeing  with  the  president  upon  questions  of  the  coin- 
age of  silver,  we  recognize  his  great  ability  and  heartily 
endorse  the  administration  as  being  pure,  upright  and 
honest." 

In  the  election  of  that  year  the  entire  Republican  ticket, 
headed  by  Hon.  Joseph  C.  Helm  for  judge  of  the  Supreme 
Court,  was  successful,  and  Robert  W.  Steele  was  elected 
district  attorney  by  a  majority  that  compared  well  with 
those  given  to  other  candidates  upon  his  ticket  and  that  was 
the  more  gratifying  because  of  the  unfair  and  unwarranted 
personal  attack  made  upon  him  by  some  of  the  elements 
opposed  to  his  election. 

An  interesting  fact  in  connection  with  this  election  of 
1891  is  that  it  was  the  first  at  which  the  new  Australian 
ballot  was  used  according  to  the  law  passed  by  the  legis- 
lature in  1889.  Previous  to  that  time  the  tickets  of  the 
several  parties  had  been  printed  upon  separate  ballots,  with 
opportunities  for  fraud  in  ballot-box  stuffing  and  in  count- 
ing that  were  successfully  blocked  by  the  Australian  ballot. 


THE    BUILDERS  6l 

The  law  of  1889  is  justly  regarded  as  the  initial  step  in  a 
long  series  of  political  reform  legislation,  which  culminated 
with  the  adoption  of  the  initiative  and  referendum  and  the 
recall  by  a  vote  of  the  people  in  the  elections  of  1910  and 
1912. 

For  the  next  three  years  the  time  and  effort  of  District 
Attorney  Steele  were  devoted  strictly  and  almost  entirely  to 
the  public  service.  While  his  business  partnership  was 
continued  on  account  of  the  extensive  investments  that  had 
been  undertaken  by  the  firm,  his  idea  of  public  duty  would 
not  permit  him  to  continue  the  practice  of  his  profession 
outside  of  his  duties  as  public  prosecutor,  or  even  to  give  to 
his  personal  business  that  attention  which  it  imperatively 
required. 

As  a  result  of  the  change  in  the  law  at  the  beginning 
of  his  term  the  cost  of  maintaining  the  district  attorney's 
office  was  greatly  reduced,  and  a  large  part  of  the  receipts 
were  turned  back  by  him  into  the  county  treasury.  His 
first  annual  report,  which  was  filed  with  the  secretary  of 
state  January  11,  1893,  shows  a  balance  turned  over  to  the 
county  treasurer  of  $2,719.27,  and  an  even  better  showing 
was  made  in  subsequent  years.  The  professional  showing 
was  even  better  than  the  financial.  In  a  review  of  his  career 
as  district  attorney,  published  in  the  Denver  Times  upon 
the  completion  of  his  work  in  that  office,  it  was  stated : 

"Mr.  Steele  has  made  an  excellent  district  attorney,  and  has 
filled  the  office  with  honesty,  fidelity  and  ability.  His  assistants  and 
deputies  were  wisely  chosen.  He  was  a  prosecutor  and  not  a  per- 
secutor." 

The  Denver  Republican  a  few  days  earlier  had 
declared : 

"As  district  attorney  of  the  count\'  during  the  past  three  years, 
and  as  clerk  of  the  Probate  Court  from  1880  to  1884,  Mr.  Steele  has 
made  an  official  record  in  every  way  creditable  to  himself  and 
beneficial  to  the  public,  and  it  may  be  accepted  as  a  foregone  con- 


62  ROBERT    WILBUR    STEELE 

elusion  that  he  will  win  new  laurels  in  the  office  of  county  and 
probate  judge.  He  is  honest,  honorable,  fit  and  industrious,  and  the 
Republican  takes  great  pleasure  in  congratulating  both  him  and  the 
community  upon  his  elevation  to  the  bench." 

Even  the  liberal  element,  so  called,  that  had  opposed 
Robert  Steele's  election  as  district  attorney,  readily  admitted 
that  they  had  no  just  cause  of  complaint.  He  gave  them, 
as  one  of  their  number  said,  "a  square  deal."  He  was,  as 
the  Times  expressed  it,  "a  prosecutor  and  not  a  persecutor." 
He  enforced  the  law,  but  he  never  made  out  of  the  law  an 
instrument  to  serve  any  unworthy  purpose,  partisan  or  per- 
sonal. No  suspicion  of  graft  or  extortion  was  ever  directed 
against  the  office  of  district  attorney  during  his  term,  and 
the  only  serious  charge  ever  brought  against  him  was  that 
he  performed  his  official  duties  too  well.  In  December, 
1892,  a  newspaper  article  appeared,  in  which  "a  large  num- 
ber of  attorneys"  were  quoted  as  expressing  their  indigna- 
tion at  the  employment  of  professional  jurors  in  criminal 
cases,  and  blaming  District  Attorney  Steele  for  this  condi- 
tion. His  answer  to  this  accusation  is  too  clever  as  a  piece 
of  controversial  writing,  and  too  interesting  as  a  contribu- 
tion to  local  history,  to  be  omitted  from  these  pages : 

"I  am  called  to  answer  the  charge  that  the  jurors  in  attendance 
upon  the  West  Side  Criminal  Court  are  professional  jurors,  and 
that  'it  is  almost  impossible  to  secure  the  acquittal  of  a  defendant 
in  that  court  by  reason  of  their  bias  or  prejudice  against  criminals 
in  general.' 

"I  wish  to  say  that  the  district  attorney  does  not  want  an\' 
professional  jurors,  that  it  is  a  notorious  fact  that  the  state  always 
suffers  from  professional  jurors,  and  it  is  always  the  desire  of  the 
prosecution  to  secure  the  very  best  men  in  the  community  to  serve 
as  jurors;  and  it  is  always  the  great  and  first  purpose  of  criminal 
lawyers  to  excuse  from  juries  the  men  who  have  property  to  be 
protected,  and  the  men  who  are  interested  in  the  enforcement  of 
law. 

"The  judges  of  the  District  Court  will  bear  me  out  in  the 
statement  that  the  present  panel  of  jurors  is  as  good,  and  composed 
of  as  reputable  citizens,  as  any  ever  impaneled  in  this  county,  and 
that  since  the  law  of  1891  went  into  effect  the  juries  in  the  Criminal 
Court  have  been  exceptionally  good. 


THE    BUILDERS  63 

"On  the  present  panel  of  about  fifty  jurors  there  are,  as  I  am 
informed  by  the  clerk,  only  four  who  have  served  on  any  jury  since 
September,  1891,  and  the  great  majority  of  them  have  never  before 
served  on  any  jury  in  this  county.  On  the  jury  by  which  Hugh 
Carlin  was  found  guilty  there  was  only  one  man  who  had  before 
served  on  a  jury,  and  the  defendant  having  ten  challenges,  could 
have  secured  a  jury  composed  of  men  who  had  not  before  this  term 
served  on  any  jury  in  this  county. 

"To  say  that  the  present  panel  of  jurors  in  the  Criminal  Divi- 
sion of  the  District  Court  is  composed  of  professional  jurors  is  a 
gross  misrepresentation,  and  is  doing  great  injustice  to  the  many 
gentlemen  who  are  neglecting  their  business  to  serve  on  that  jury. 

"I  am  willing  to  concede  the  charge  that  it  is  almost  impossible 
to  secure  the  acquittal  of  a  defendant  in  the  District  Court,  but  I 
do  not  attribute  the  conviction  of  defendants  to  the  bias  or  prejudice 
of  the  jurors  against  crime,  or  because  of  any  desire  to  secure  the 
approval  of  the  district  attorney,  but  to  the  fact  that  the  defendants, 
with  very  rare  exceptions,  are  guilty,  and  the  cases  are  tried  almost 
immediately  after  the  crimes  are  committed,  while  the  proofs  are 
fresh  in  the  minds  of  the  witnesses. 

"While  I  am  personally  acquainted  with  but  four  or  five  of  the 
present  panel,  I  do  not  doubt  that  these  jurors  are  prejudiced  to  a 
certain  extent  against  criminals — all  good  citizens  are  prejudiced 
against  criminals — and  it  is,  and  should  be,  the  aim  of  a  public 
prosecutor  to  secure  a  jury  composed  of  men  who  are  not  in  sym- 
pathy with  criminals,  and  I  know  the  present  panel  of  jurors  in  the 
District  Court  is  not  in  sympathy  with  crime  or  the  criminal 
classes.     *     *     * 

"The  public  prosecutor  must  always  expect  to  be  abused  by 
that  class  of  criminal  lawyers  that  grow  up  and  are  fostered  and 
maintained  in  large  cities.  I  do  not  mean  lawyers  who  appear 
occasionally  in  the  courts  to  defend  criminals,  but  I  mean  that  class 
to  whom  no  client  entrusts  any  civil  business  and  who  haunt  the 
jails  and  the  justices'  courts  to  get  business  and  who  are  willing  to 
take  desperate  criminal  cases  upon  contingent  fees,  with  the  hope  of 
obtaining  an  acquittal  or  a  mistrial  by  misrepresentation  and  petti- 
fogging. 

"These  are  the  lawyers  who  are  most  aggrieved  at  the  results 
tha*^  have  been  secured  during  the  present  term  of  court,  and  I  am 
exceedingly  gratified  that  I  am  not  called  upon  to  apologize  for 
many  acquittals  and  few  convictions,  and  the  public  will,  I  know, 
be  gratified  that  an  honest  and  fearless  jury  in  attendance  on  the 
District  Court  have  acted  upon  the  maxim  of  that  great  statesman 
and  soldier,  'Let  no  guilty  man  escape.'  " 

It  was  while  Robert  Steele  was  engaged  in  a  service  to 
which  he  devoted  his  entire  thought  and  effort  that  the 
state  of  Colorado  was  suddenly  assailed  by  a  financial  and 
industrial  tempest   such   as   few   communities  have  experi- 


64  ROBERT    WILBUR    STEELE 

enced.  Up  to  the  year  1893  Colorado  was  par  excellence 
the  "Silver  State."  It  was  not  merely  that  silver  was  her 
principal  product,  nor  even  that  this  was  the  one  thing  she 
produced  that  had  a  fixed  value  and  an  open  market  at  all 
times.  The  entire  structure  of  business  and  industry  in 
Colorado  was  built  upon  the  foundation  of  silver,  and  an 
insecurity  of  that  metal  in  its  position  as  one  of  the  two 
fundamental  money  standards  of  the  world  was  a  disturb- 
ance and  a  threat  to  every  dollar  of  property,  to  every  part 
of  business  and  to  every  individual  of  the  population  of 
the  state. 

For  various  reasons — some  industrial,  some  political, 
and  many  of  them  world-wide  in  their  extent — the  price  of 
silver  declined  in  seventeen  months  previous  to  June,  1893, 
from  $1.00  to  83  cents.  In  that  month  the  world  was 
startled  by  the  news  that  the  mints  of  India,  hitherto  one 
of  the  principal  outlets  for  the  product  of  the  silver  mines, 
had  been  closed  to  further  coinage  of  that  metal.  By  June 
30  the  price  of  silver  had  declined  to  62  cents  an  ounce. 
On  June  29,  at  a  meeting  of  the  managers  of  the  smelters 
and  many  of  the  larger  mines  of  the  state,  it  had  been 
resolved  to  close  down  until  conditions  became  better.  On 
July  17  came  a  crash  among  the  banks  of  Denver,  the 
effects  of  which  were  not  relieved  until  after  all  but  three 
had  suspended  or  failed.  This  disaster  to  the  banks  was 
but  a  single  manifestation  of  almost  universal  wreck  in 
business  and  financial  circles.  Employment  ceased  sud- 
denly for  thousands ;  material  property  of  all  kinds  became 
practically  valueless  in  exchange  for  ready  cash ;  in  hun- 
dreds of  cases  the  savings  of  a  lifetime  were  swept  away 
in  a  moment;  business  men  who  had  enjoyed  and  deserved 
the  highest  measure  of  credit  were  unable  to  meet  their 
obligations,  and  the  most  promising  investments  shrunk  in 
value  until  they  were  transformed  into  a  crushing  weight 


THE    BUILDERS  65 

upon  those  that  had  assumed  an  obligation  of  future  pay- 
ments. 

The  investments  of  Steele  &  Malone  were  not  exempt 
from  the  universal  disaster.     For  two  years  Robert  Steele 
had  ceased  his  connection  with  the  legal   business  of  the 
firm,  but  he  was  still  concerned  in  the  land  investments  that 
had  been  made  in  the  Arkansas  Valley,  in  Denver  and  else- 
where.    As   a   result   of   nearly   ten   years   of   hard   work, 
coupled  with  much  more  than  ordinary  business   sagacity 
and  good  judgment,  and  with  opportunities  of  exceptional 
promise,  he  had  gained  what  had  seemed  to  be  the  assurance 
of  a  moderate  fortune.     Under  any  except  most  extraor- 
dinary conditions,  these  investments  could  not  be  considered 
speculative  in  their  nature,  for  they  were  based  upon  an 
intimate  knowledge  of  values  and  conditions,  and  they  had 
already   demonstrated   the   excellent  judgment   with  which 
they   had   been   planned    and   placed.      Almost    in    a   day, 
through  no  fault  of  his  own,  and  almost  without  his  knowl- 
edge,   these    accumulations    and    favorable    prospects    were 
swept  out  of  existence,   and  in   their  place   Robert   Steele 
found  himself  under  a  load  of  obligations  that  taxed  to  the 
utmost  his  courage  and  his  strength  through  the  remaining 
years.  Under  similar  circumstances,  other  men  of  undoubted 
honor   and   of  unquestioned   integrity  have   thought   it   no 
disgrace  to  evade  the  responsibility  for  such  indebtedness. 
Robert  Steele  matched  his  life  to  a  higher  standard.     In  the 
dark  days  of  1893  he  wrote  for  the  relief  of  others  a  bank- 
ruptcy law  that  gained  high  repute  for  its  mingled  mercy 
and  justice,  but  for  himself  he  claimed  no  clemency.     Men 
saw   and   respected   the   quality   of   his   character   and   the 
integrity  of  his  purpose  and  gladly  accorded  to  him  the  one 
thing  he  asked — the  time  to  meet  their  claims.     Only  those 
most  intimately  in  his  confidence  knew  the  burden  he  car- 
ried through  the  years,  or  how  much  strength  and  time  that 


66  ROBERT    WILBUR    STEELE 

might  well  have  been  devoted  to  better  things  went  toward 
the  discharge  of  that  indebtedness.  For  nearly  twenty  years 
Robert  Steele  faced  his  task  and  performed  his  duty,  and, 
when  the  end  came,  he  went  to  the  great  hereafter  a  free 
man,  having  discharged  not  only  every  personal  debt,  but 
also  every  one  that  had  been  assumed  by  him  as  a  result  of 
business  entanglement  or  association  with  other  men. 

Such  a  record  is  rare,  and  it  deserves  permanent 
inscription  all  the  more  in  the  case  of  one  whose  high 
achievements  in  other  lines  might  possibly  warrant  popular 
indulgence  toward  personal  carelessness  in  business  affairs 
or  a  disregard  of  the  highest  standards  of  financial  integrity. 


CHAPTER  V 

THE  TRIBUNAL  OF  THE  PEOPLE 

In  Colorado,  as  in  other  states  whose  court  system  is 
planned  along  similar  lines,  the  County  Court  is,  more  than 
any  other,  the  Court  of  the  Common  People,  From  the 
settlement  of  petty  quarrels  it  is  relieved  by  the  justices' 
courts,  and  in  the  cities  the  police  magistrates  assume  juris- 
diction in  cases  involving  infractions  of  municipal  ordi- 
nances and  the  numerous  matters  belonging  to  the  daily 
duties  of  the  police.  The  district  courts,  on  the  other  side, 
take  the  responsibility  for  all  the  more  serious  criminal 
offenses  and  for  those  civil  cases  where  the  larger  rights  and 
interests  of  corporations  and  wealthy  individuals  are  con- 
cerned. The  County  Court  is  the  court  of  the  middle  classes, 
and  it  is  especially  the  court  through  which  the  state  admin- 
isters its  duties  and  asserts  its  authority  upon  the  common 
people.  It  is  the  court  of  the  widow  and  the  orphan.  It 
deals  with  the  administration  of  estates ;  it  is  charged  with 
the  protection  of  minor  heirs;  it  grants  the  great  majority 
of  divorces ;  it  has  the  duty  of  safeguarding  the  interests  of 
individuals  and  of  society  in  cases  of  insanity ;  and  it  was 
entrusted  with  the  responsibility  of  dealing  with  juvenile 
offenders  until  the  development  of  that  portion  of  its  work 
resulted  in  the  establishment  of  a  distinct  court  for  that 
particular  purpose. 

In  January,  1895,  the  position  of  judge  of  the  County 
Court  of  Arapahoe  County  was  about  to  become  vacant  as 
a  result  of  the  election  of  Judge  O.  E.  LeFevre  to  the 
District  bench,  and  the  board  of  county  commissioners 
appointed  to  the  place  Robert  W.  Steele,  whose  term  of 
office  as  district  attorney  had  not  yet  expired.     He  brought 


68  ROBERT    WILBUR    STEELE 

to  this  position  the  intelligence  gained  by  his  work  as  public 
prosecutor,  his  knowledge  of  the  causes  of  crime,  his  con- 
viction that  the  criminal  is  himself  often  the  victim  of 
circumstances  and  conditions  over  which  he  has  no  control, 
and  his  understanding  that  the  suffering  that  is  the  inevi- 
table result  of  wrongdoing  must  always  fall  far  more 
heavily  upon  the  innocent  than  upon  the  guilty. 

To  the  superficial  view,  the  work  and  duty  of  the 
county  judge  and  those  of  the  district  attorney  might  seem 
to  be  diametrically  opposed.  The  one  is  the  representative 
of  the  terror  of  the  law,  the  nemesis  of  the  criminal ;  the 
other  finds  his  duty  in  the  most  paternal  branch  of  the 
government  and  represents  society's  rapidly  enlarging  con- 
viction that  the  innocent  ought  not  to  suffer  for  the  guilty, 
and  that  the  strongest  of  human  institutions,  the  State,  has 
a  duty  to  perform  toward  the  weak  and  the  unfortunate. 
There  is  no  doubt  that  Robert  Steele's  experience  as  district 
attorney  had  an  important  part  in  his  work  as  county  judge, 
and  there  is  no  doubt  that  his  v/ork  in  the  people's  tribunal, 
the  County  Court,  had  a  most  important  bearing  upon  his 
ideas,  his  opinions  and  his  position  in  the  higher  court  to 
which  he  was  later  called. 

Robert  Steele,  it  should  be  remembered,  was  truly  a 
man  of  the  people ;  not  in  the  sense  of  being  a  representa- 
tive of  the  lower  classes  of  society,  to  whom  demagogues 
sometimes  seem  to  ascribe  an  exclusive  right  of  citizenship, 
but  in  the  sense  that  he  was  the  outgrowth  and  product  of 
a  community  in  which  the  distinction  of  classes  had  not  yet 
become  established.  In  such  a  town  as  Denver  was  in  the 
closing  years  of  the  nineteenth  century  there  was  no  democ- 
racy as  distinguished  from  aristocracy.  Socially  and  politi- 
cally Robert  Steele  acknowledged  no  one  as  his  superior; 
he  looked  down  upon  no  one  as  an  inferior.  His  birth,  his 
associations,  his  education,  his  early  experiences  in  business. 


THE    TRIBUNAL    OF    THE    PEOPLE  69 

in  politics,  in  public  service  and  in  the  practice  of  his  pro- 
fession had  made  him  as  good  as  the  best  among  his  asso- 
ciates;  but  none  of  these  things  had  developed  in  him  any 
of  that  sense  of  self-assumed  superiority  which  is  too  often 
inseparable  from  a  successful  career.  If  as  the  public 
prosecutor  he  had  come  to  feel  himself  distinctly  aligned 
with  the  forces  of  law  and  order  and  opposed  to  the  disin- 
tegrating and  reactionary  elements  of  human  society,  his 
work  as  judge  of  the  County  Court  very  quickly  brought 
him  into  touch  and  harmony  with  the  spirit  of  the  people, 
and  gave  to  him  an  understanding  of  the  needs,  the  limita- 
tions, the  rights,  the  troubles,  the  temptations,  the  struggles, 
the  sufferings,  the  aspirations  and  the  ideals  of  the  average 
man,  of  the  average  woman,  of  the  child  of  the  people, 
which  was  intensified  and  illuminated  by  his  own  experi- 
ences of  financial  reverses  and  of  well  planned  ventures 
wrecked  through  no  fault  of  his  own. 

It  is  not  true  that  every  judge  of  the  County  Court 
gains  from  his  experiences  what  Judge  Robert  Steele 
obtained  there.  But  it  is  true  that  his  work  as  probate  judge 
for  the  widows  and  orphans,  his  services  in  connection  with 
divorces,  naturalizations  and  commitments  in  insanity,  his 
enforcement  of  the  laws  against  the  inhumane  treatment  of 
animals  and  children,  and  his  care  and  consideration  for 
the  boys  and  girls  that  came  under  his  authority  in  cases 
of  juvenile  delinquency  had  a  most  important  part  in  the 
development  of  his  mind  and  character,  in  preparing  him 
for  the  high  duties  subsequently  laid  upon  him,  and  in 
assuring  to  him  that  place  in  the  confidence  and  the  affec- 
tion of  the  people  of  the  city  and  the  state  which  it  was  his 
good  fortune  never  to  lose. 

While  events  in  Robert  Steele's  professional  career 
were  thus  shaping  themselves  in  such  a  way  as  to  make 
him  independent  of  class  interests  and  to  qualify  him  for 


70  ROBERT    WILBUR    STEELE 

service  as  the  judge  of  all  the  people,  other  events  along 
political  lines  were  combining  to  rid  him  of  the  bonds  of 
narrow  partisanship  and  to  make  him  particularly  the  repre- 
sentative, and  in  a  measure  the  precursor  of  a  new  era  of 
political  thought  and  practice. 

When  Davis  H.  Waite  was  nominated  for  governor  of 
Colorado  by  the  Populist  party  in  1892,  the  possibility  of 
his  success  was  as  far  from  the  thought  of  anyone,  even 
among  his  own  supporters,  as  is  the  expectation  of  the  elec- 
tion of  Eugene  Y.  Debs  as  president  from  the  minds  of 
those  who  regularly  present  him  as  a  candidate  for  that 
high  office.  But  Waite  represented  opposition  to  things  as 
they  were,  and  the  progress  of  political  events  in  connection 
with  silver  and  other  current  issues  suddenly  drew  to  his 
support  thousands  of  men  whose  sole  impulse  was  to  strike 
blindly  against  forces  that  were  crushing  them.  His  elec- 
tion as  governor  in  that  year  is  but  another  proof  of  the 
severity  of  the  tempest  that  was  disturbing  the  foundations 
of  all  the  establishments  of  society,  business,  politics  and 
government. 

Waite  represented  more  than  opposition.  Fanatic, 
bigoted,  impractical  as  he  was,  he  had  distinguished,  in 
common  with  others  of  his  class  in  that  day,  some  of  the 
elements  of  social  and  political  evil ;  he  had  sought  earnestly 
for  the  solution  of  pressing  problems ;  he  had  found  a 
beginning  of  the  way  of  progress  upon  which  the  men  of 
today  walk  in  the  full  light  of  a  new  era.  He  realized  that 
the  very  foundations  of  popular  self-government  were 
endangered  by  the  development  of  special  privilege  and  by 
a  rapidly  growing  interference,  in  politics  and  government, 
with  that  rule  according  to  the  will  of  the  majority  of  the 
people,  which  is  the  vital  essence  of  the  American  republic. 
Declaring  in  Scriptural  quotation  that  it  were  better  that 
blood  should  flow  to  the  horses'  bridles  than  that  the  funda- 


THE    TRIBUNAL    OF    THE    PEOPLE  71 

mental  principles  of  this  government  should  be  overthrown, 
Davis  H.  Waite  found  himself  the  opportune  target  for  a 
shower  of  misrepresentation,  cheap  witticisms  and  contumely 
which  persisted  throughout  his  life  and  from  which  his 
memory  has  never  been  cleared.  The  failure  of  his  admin- 
istration, with  its  successions  of  disorders,  turmoils  and 
incompetencies,  brought  the  Republican  restoration  of  Gov- 
ernor Mclntire,  who  was  loudly  heralded  as  the  "redeemer" 
of  the  state  from  Populist  misrule  and  folly,  but  whose 
administration,  outside  of  its  demonstration  of  his  unfitness 
for  that  high  position,  only  served  to  fix  more  firmly  in  the 
minds  of  the  people  the  unreasonableness  and  the  dangers 
of  the  machine  system  by  which  the  Republican  organiza- 
tion was  dominated  and  directed. 

Governor  Mclntire  was  inaugurated  in  the  same  month 
(January,  1895)  in  which  Robert  Steele  was  appointed  as 
county  judge.  In  that  month  also  Edward  O.  Wolcott,  for 
the  last  time,  was  commissioned  by  the  people  of  Colorado 
to  sit  as  their  representative  in  the  senate  of  the  United 
States.  The  senior  senator  at  that  time  was  Henry  M. 
Teller,  who  among  all  of  Colorado's  public  men  reached 
the  highest  position  in  the  regard  of  his  fellow  citizens  and 
in  honor  among  the  statesmen  of  the  nation.  Originally  a 
Democrat,  he  had  joined  the  Republican  party  very  early 
in  its  history,  and  from  1876,  when  the  state  of  Colorado 
was  created,  he  held  the  position  of  United  States  senator 
until  1903,  except  for  the  three  years  from  1882  to  1885, 
when  he  was  secretary  of  the  interior  under  President 
Arthur.  A  man  of  unblemished  personal  character,  of  high 
intelligence,  and  possessing  the  confidence  and  approval  of 
the  people  of  his  state  to  an  extraordinary  degree,  Senator 
Teller  was  a  true  and  worthy  representative  of  Colorado  in 
the  high  council  of  the  nation.  At  an  early  stage  in  the 
development   of   the    silver   controversy,   he    recognized    its 


72  ROBERT    WILBUR    STEELE 

importance  to  the  nation  and  to  his  state  and  gave  to  its 
consideration  such  a  thorough  study  as  perhaps  no  other 
man  of  his  times  was  able  or  willing  to  give. 

The  rehabilitation  of  Colorado  industry,  progressively 
accomplished  since  the  dark  days  of  1893,  brought  no 
change  in  the  opinions  of  the  people  of  the  state  with  regard 
to  the  rights  and  the  importance  of  the  silver  question,  which 
was  easily  the  central  and  paramount  political  issue,  so  far 
as  Colorado  people  were  concerned,  of  the  presidential  cam- 
paign of  1896.  The  election  of  Mclntire  as  governor  in 
1894  and  the  election  of  Wolcott  to  the  senate  in  January, 
1895,  were  victories  for  the  Republican  machine,  while 
Teller  and  the  delegates  who  accompanied  him  to  the  St. 
Louis  convention  in  June,  1896,  were  unquestionably  the 
choice  of  the  great  majority  of  the  Republican  voters  of  the 
state.  Senator  Teller,  with  three  other  western  senators, 
walked  out  of  the  St.  Louis  convention  in  protest  against 
the  adoption  of  a  gold  plank  for  the  national  party  plat- 
form, and  the  news  of  his  action  was  heralded  to  the  people 
of  Denver  by  a  salute  of  twenty-one  guns  on  the  state  capi- 
tol  grounds. 

The  relations  between  Senator  Teller  and  Robert  Steele 
had  been  especially  friendly  and  intimate.  The  successful 
statesman  had  taken  a  genuine  liking  for  the  youth  who 
was  winning  for  himself  such  a  large  number  of  friends 
among  all  kinds  and  conditions  of  men.  Long  before  the 
silver  question  came  into  national  prominence,  Robert  Steele 
had  entertained  the  highest  respect  and  admiration  for 
Senator  Teller,  and  had  often  sought  and  received  his 
counsel  and  advice  in  political  and  personal  affairs,  in 
conversation  and  by  correspondence.  In  the  partings  of 
the  political  ways  Robert  Steele,  like  thousands  of  other 
Colorado  Republicans,  went  with  Teller,  but  he  took  this 
course  not  merely  because  he  was   satisfied  to  follow  the 


THE    TRIBUNAL    OF    THE    PEOPLE  73 

political  fortunes  of  the  man  for  whom  he  had  the  highest 
regard  and  respect,  and  not  solely  because  he  saw  the  impor- 
tance of  the  silver  issue  to  the  welfare  of  his  home  state. 
Robert  Steele  was  an  independent  thinker,  and  his  own 
study  and  his  own  intelligence  had  brought  to  him  the  con- 
viction that  the  silver  problem  involved  fundamental  prin- 
ciples affecting  the  rights  and  the  interest  of  the  common 
people.  He  became  convinced  that  in  sober  truth  a  moral 
issue,  as  well  as  a  financial  issue,  was  raised  by  a  proposition 
to  change  the  basic  standard  by  which  was  determined  not 
merely  the  exchange  value  of  all  kinds  of  property,  but  the 
earning  power  of  labor,  and  the  measure  according  to  which 
all  outstanding  debts  were  to  be  repaid.  Believing  as  he 
did,  it  was  impossible  for  a  conscientious  thinker  like  Robert 
Steele  to  call  himself  a  Republican  so  long  as  the  Repub- 
lican party  plainly  declared  itself  opposed  to  the  main- 
tenance of  the  monetary  system  that  had  been  the  established 
practice  since  the  earliest  days  of  the  republic.  The  Silver 
Republican  party  was  the  necessary  and  logical  result,  not 
of  Teller's  bolt,  which  was  merely  incidental,  but  of  the 
adoption  by  the  Republican  party  of  a  new  test  of  party 
loyalty. 

It  was  as  a  Republican  that  Robert  Steele  had  been 
appointed  to  the  county  bench  by  the  commissioners.  It 
was  as  a  Republican  that  the  party  convention,  September 
26,  1895,  had  given  him  by  acclamation  the  nomination 
both  for  the  short  and  the  long  terms.  It  was  as  a  Repub- 
lican that  the  people  in  the  following  November  had 
approved  the  choice  of  the  commissioners  and  the  selection 
of  the  party  convention;  at  the  same  time  setting  their  seal 
of  approval  upon  his  course  of  public  conduct  thus  far. 
But  the  election  of  Adams  as  governor  in  1896,  and  the 
re-election  of  Teller  as  senator  in  January,  1897,  marked 
a  great  and  permanent  change  in  political  conditions.     In 


74  ROBERT    WILBUR    STEELE 

1898,  Judge  Steele  was  again  a  candidate  for  re-election, 
primarily  as  a  Silver  Republican,  but  with  the  endorsement 
of  the  People's,  the  Democratic,  the  Teller  Silver  Repub- 
lican and  the  National  People's  parties,  and  he  received 
almost  exactly  two-thirds  of  the  total  number  of  votes  cast 
at  that  election. 

In  those  years  of  political  confusion  party  names  were 
still  strong  with  large  masses  of  voters,  partisan  banners 
were  waved  as  wildly  as  ever  before,  and  partisan  bosses 
still  plotted  in  the  old  way  and  held  firmly  to  the  belief, 
often  frankly  expressed,  that  machine  methods  of  chicanery 
and  usurpation  were  necessary  for  the  conduct  of  public 
affairs.  Looking  back  over  those  years,  with  the  knowledge 
of  what  has  developed  since,  it  is  easy  to  see  that  they  were 
years  of  partisan  disorganization.  The  old  issues  growing 
out  of  the  attempted  secession  of  the  slave-holding  states 
and  the  reconstruction  of  the  Union  were  no  longer  domi- 
nant upon  the  political  purposes  and  aspirations  of  the 
masses  of  American  voters.  New  issues  were  beginning  to 
rise  amid  the  fragments  of  outgrown  forms.  The  period 
of  reorganization  had  not  yet  arrived,  and  it  would  have 
required  the  vision  of  a  prophet  rather  than  that  of  a  states- 
man to  have  foretold  along  what  lines  the  political  develop- 
ment of  the  future  would  run.  The  vote  of  the  senatorial 
election  of  1895,  when  Wolcott,  Republican,  received  57, 
Pence,  Democrat-Populist,  36,  and  Thomas,  the  National 
Democrat,  3,  gives  proof  that  the  change  then  going  on  was 
something  far  wider  and  more  fundamental  than  a  change 
from  one  party  to  its  opponent,  a  simple  transfer  of  the 
commission  of  public  authority  from  one  established  organi- 
zation to  another  party,  constructed  upon  similar  lines, 
working  with  similar  methods,  and  devoted  to  a  policy  that 
consisted  mainly  in  taking  the  opposite  view  of  the  things 
that  were  occupying  the  attention  of  its  political  rival.    The 


THE    TRIBUNAL    OF    THE    PEOPLE  75 

succession  of  Democratic  governors — Adams  in  1896, 
Thomas  in  1898  and  Orman  in  1900 — definitely  marked 
the  rejection  of  the  old  political  faith  and  methods  to  which 
the  people  of  Colorado  had  almost  continuously  pledged 
their  allegiance  in  former  years,  but  the  beginnings  of  the 
new  life  of  the  future,  the  developing  form  of  the  politics 
of  the  twentieth  century  is  not  to  be  found  among  the 
champions  or  the  "wheel  horses"  of  either  of  the  old  party 
organizations,  but  with  Teller  and  Steele  and  unnumbered 
others  from  both  parties  who  thus  early  broke  the  customary 
bonds  of  political  conservatism  and  set  for  themselves  the 
higher  standard  of  the  people's  welfare  as  the  supreme 
authority  for  their  political  conduct. 

How  closely  Judge  Steele  kept  himself  to  the  domestic 
affairs  of  the  common  people,  how  earnestly  he  devoted 
himself  to  the  faithful  performance  of  the  duties  of  the 
office  that  had  been  committed  to  him,  how  successfully 
he  planned  and  wrought  and  withstood,  as  the  agent  of 
state  authority  for  the  benefit  of  those  that  came  within 
the  circle  of  his  power  and  influence,  is  told  in  the  volumes 
of  the  proceedings  of  the  court  of  Arapahoe  County  for  the 
years  1895  to  1900.  From  that  amount  of  material  it  is 
possible  to  select  for  present  use  only  such  instances  as  may 
serve  to  show  the  scope,  the  character  and  the  purpose  of 
the  work  that  he  was  doing. 

The  divorce  business  of  the  County  Court  was  a  large 
pare  of  its  routine  work.  The  comparative  laxity  of  Colo- 
rado divorce  laws,  in  spite  of  legislative  efforts  at  reform, 
had  been  further  increased  by  the  practices  of  the  courts. 
It  was  for  the  legislature  and  not  for  the  judge  to  make 
the  laws,  but  it  was  clearly  the  duty  of  the  judge  to  see 
that  the  laws  were  executed  and  administered  correctly. 
In  a  single  day  Judge  Steele  dismissed  three  juries,  dis- 
charging them   after  they   were   impanelled   and   the   cases 


76  ROBERT    WILBUR    STEELE 

begun,  because  formalities  prescribed  by  law  had  not  been 
complied  with,  or  because  a  proper  preparation  and  presen- 
tation of  evidence  had  not  been  made.  In  another  case, 
where  the  testimony  of  the  applicant  for  divorce  did  not 
appear  to  be  satisfactory,  Judge  Steele  took  matters  into 
his  own  hands,  personally  questioned  the  witness,  and 
refused  to  proceed  with  the  case  until  certain  matters  that 
seemed  mysterious  had  been  explained  and  cleared  up  to  his 
satisfaction.  Such  incidents  are  not  important  in  them- 
selves, but  they  indicate  that  Judge  Steele  took  his  work 
seriously,  that  he  considered  himself  to  be  a  responsible 
agent  in  the  administration  of  justice  and  not  merely  the 
attendant  of  a  divorce  mill. 

The  county  judge  has  the  authority  to  bind  as  well  as 
to  loose,  and  the  office  of  marrying  was  not  without  some 
surprising  incidents.  In  one  particular  case,  after  the  cere- 
mony had  been  performed  the  judge  accidentally  discovered 
that  the  bridegroom  was  under  the  legal  age,  and  that  the 
marriage  license  had  been  issued  through  the  neglect  of  a 
clerk  who  had  omitted  to  ask  the  prescribed  questions. 
Thereupon  the  wedded  pair  were  officially  notified  that  the 
completed  ceremony  was  null  and  void.  The  following 
day,  however,  the  eighteen-year-old  bridegroom  returned 
with  two  witnesses  to  prove  that  he  was  self-supporting  and 
that  his  parents  were  non-residents  of  the  state,  whereupon 
the  judicial  sternness  was  mollified  and  the  ceremony  was 
allowed  to  stand  as  of  good  record  and  effect. 

In  another  case  the  matrimonial  candidates  appeared 
in  court  while  a  divorce  case  was  being  heard.  It  was  with 
characteristic  kindliness  that  he  interrupted  his  business  to 
comply  with  their  request,  and  the  incident  became  further 
illustrative  of  his  personal  interest  in  the  welfare  of  all 
around  him  when  he  took  advantage  of  the  opportunity  to 
give  them  a  simple,  kindly  talk  upon  the  pitfalls  and  safe- 


THE    TRIBUNAL    OF    THE    PEOPLE  77 

guards  of  married  life,  calling  their  attention  to  the  wreck 
of  happiness  that  had  been  so  incongruously  presented  to 
their  view  at  that  particular  time. 

An  interesting  fact  in  this  connection  is  that  Judge 
Steele  never  accepted  a  fee  for  his  service  in  the  marriage 
ceremony,  but  conferred  the  state's  recognition  of  the  mating 
of  man  and  woman,  as  a  privilege  of  citizenship,  without  a 
charge. 

The  work  of  naturalization  also  came  under  the  author- 
ity of  the  County  Court.  Like  the  divorce  laws,  the  natu- 
ralization laws  of  that  time  were  very  lax.  A  great  many 
persons  were  naturalized  in  almost  every  state  as  a  part  of 
the  regular  methods  of  machine  politics,  and  too  often  very 
little  effort  was  made  to  require  any  proof  of  fitness  for 
citizenship,  or  any  genuine  compliance  with  the  very  liberal 
provisions  of  the  law.  Judge  Steele  was  one  of  the  earlier 
judges  to  insist  upon  some  demonstration  of  the  applicant's 
understanding  of  the  duties  of  citizenship,  although  his 
efforts  to  uphold  the  standard  were  not  always  successful, 
as  witness  the  case  of  "Joe"  Shiwagri,  a  Syrian,  who,  after 
five  years  of  residence  in  this  country,  knew  but  a  single 
word  of  English,  his  own  abbreviated  first  name,  and  who 
could  neither  read  nor  write.  Judge  Steele  refused  natu- 
ralization, but  "Joe"  promptly  renewed  his  application 
before  a  judge  of  the  District  Court  and  became,  as  the 
newL;paper  account  of  the  day  has  it,  "a  full-fledged  member 
of  the  voting  contingent  for  use  at  the  next  election." 

The  responsibility  of  the  state  toward  the  insane, 
involving,  as  it  often  does,  the  enforced  restraint  of  the 
patient  and  his  separation  from  friends  and  home,  is  espe- 
cially trying  to  public  officials  and  others  connected  with 
this  part  of  governmental  duty.  Conscientious  and  sympa- 
thetic in  his  nature  as  Judge  Steele  was,  the  testing  of 
persons  suspected  of  insanity,  and  the  care  of  the  interests 


78  ROBERT  WILBUR  STEELE 

of  those  who  were  incompetent  to  care  for  their  own,  made 
unusual    demands    upon    his    strength,    which    were    never 
slighted  or  refused.     The  difficulties  and  the  thanklessness 
of  such  duties  are  well  illustrated  by  the  once  famous  Daily 
case.     Daily  had  been  sent  to  jail  by  Judge  Steele  for  con- 
tempt of  court  in  refusing  to  pay  alimony  to  his  divorced 
wife,  but  he  had  been  released  when  it  became  evident  that 
he  was  unable  to  make  the  payments  and  that  no  good  would 
result    from    his    continued    imprisonment.       Mrs.    Daily 
became  possessed  with  the  idea  that  Judge  Steele  was  her 
personal  enemy,  and,  after  several  months  of  letter  writing, 
personal  visits  and  other  forms  of  annoyance  to  him  and  to 
members  of  his   family,   her  delusions  culminated   at  two 
o'clock  one  April   morning  in    1899,  when   she  threw  two 
large  stones  and  a  heavy  bottle  through  three  large  windows 
of  Judge  Steele's  residence.    The  missiles  were  accompanied 
with  signed  notes  and  newspaper  clippings  referring  to  her 
fancied   wrongs   and   grievances.     When   Mrs.   Daily  was 
tried  upon  a  charge  of  insanity.  Judge  Steele  had  Judge 
Jacobs  come  from  Greeley  in  order  that  there  might  be  no 
doubt  about  the  fairness  of  the  hearing.     She  was  sent  to 
the  state  asylum  at  Pueblo,  from  which  she  twice  escaped, 
but  was  soon  recaptured.     Even  after  she  was  released  in 
the   care   of   friends   from   another   state,   her   unreasoning 
enmity  toward  those  who  had  never  injured  her  in  any  way 
was  a  continued  source  of  apprehension  for  the  objects  of 
her  hate. 

Another  case,  which  involved  the  rights  of  the  mentally 
incompetent  as  well  as  those  of  the  widow,  was  that  of  Dr. 
Henry  Bucknum,  who  had  a  five-thousand-dollar  life  insur- 
ance policy  issued  by  a  certain  company.  Dr.  Bucknum 
went  insane  and  died  in  the  Pueblo  asylum.  At  the  time 
of  his  death  the  original  policy  had  been  replaced  by  one 
for  $2,000,   which  the   company   refused  to  pay,   claiming 


THE    TRIBUNAL    OF    THE    PEOPLE  79 

that,  at  the  time  the  application  was  made  for  the  second 
policy,  Dr.  Bucknum  was  not  in  sound  health  as  stated  in 
the  paper  he  signed,  but  was  insane.  Suit  having  been 
brought.  Judge  Steele  decided  that  the  widow  was  entitled 
not  merely  to  the  $2,000  for  which  she  sued  and  for  which 
he  gave  judgment,  but  for  the  entire  amount,  $5,000,  of 
the  original  policy,  inasmuch  as  the  doctor  as  an  insane 
person  could  not  legally  make  a  substitution  of  his  policy 
or  a  waiver  of  his  own  rights  or  those  of  the  beneficiary. 

In  the  conduct  of  the  probate  business  of  his  court. 
Judge  Steele  showed  himself  a  vigilant  protector  of  those 
whose  interests  came  under  his  authority,  a  clear-sighted 
dispenser  of  justice  in  the  intricate  settlements  of  estates 
under  will  or  the  general  statute,  and  a  very  active  and 
stern  foe  of  everyone,  whether  attorney,  official  or  claimant, 
who  sought  to  gain  an  unfair  advantage  over  others.  Him- 
self a  man  of  the  most  scrupulous  integrity,  it  was  some- 
times difficult  for  him  to  understand  how  men  in  positions 
of  trust  and  honor  could  allow  themselves  to  be  controlled 
by  dishonest  or  selfish  motives.  His  always  active  sympathy 
for  the  weak  and  the  unfortunate  made  him  the  more 
uncompromising  in  his  resistance  to  all  forms  of  injustice 
and  oppression,  but  the  broad  tolerance  of  his  humanity 
extended  even  to  those  against  whom  his  indignation  wa? 
righteously  aroused.    He  was  just  even  to  the  wrongdoer. 

In  the  famous  case  of  the  estate  of  Isaac  Cooper,  the 
report  of  the  administrator  showed  that  five  years  after 
Cooper's  death  the  estate  that  was  originally  estimated  to 
amount  to  $100,000  or  more  had  decreased  to  a  balance  of 
$972.95.  Judge  Steele's  attention  having  been  called  to  the 
matter,  he  appointed  a  referee  to  investigate  the  affairs  of 
the  estate  and  summed  up  the  referee's  report  with  the 
declaration  that,  while  he  believed  that  the  administrator 


80  ROBERT    WILBUR    STEELE 

had  not  been  dishonest,  no  estate  before  his  court  had  ever 
been  wronged  like  that  of  Isaac  Cooper : 

"Twenty-four  thousand  dollars  paid  to  a  portion  of  the  fourth- 
class  claimants  and  bonds  taken  many  of  which  are  worthless  and 
the  principals  and  sureties  beyond  the  jurisdiction  of  the  court; 
twenty-five  thousand  dollars  paid  to  attorneys  and  the  estate  not 
near  settlement;  sixty  thousand  dollars  paid  out  of  the  funds  of  the 
estate  upon  orders  of  the  judge" — a  former  judge  of  the  County 
Court — "and  no  records  of  these  expenditures;  seven  thousand  dol- 
lars loaned  to  the  judge;  thirty-five  hundred  dollars  mysteriously 
disappearing  for  a  space  of  two  years  and  as  mysteriously  reappear- 
ing among  the  moneys  of  the  estate  but  without  interest." 

Judge  Steele  further  said : 

"A  judge  who  receives  favors  in  the  wa}-  of  a  loan  and  who  of 
his  own  motion  appropriates  the  money  of  an  estate  to  his  own  use, 
as  was  shown  by  the  testimony  in  this  case,  cannot  be  expected  to 
scrutinize  and  impartially  pass  on  the  reports  of  the  administrator; 
his  judgment  is  warped;  the  consciousness  of  the  wrong  he  has 
committed  precludes  right  action ;  with  him  the  paramount  issue  is 
protection,  and  having  become  a  wrongdoer,  he  closes  his  eyes  to 
the  plundering  of  others." 

In  conclusion,  Judge  Steele  fixed  what  he  considered 
to  be  proper  compensation  for  the  attorneys,  ordered  the 
administrator  to  amend  his  report  so  as  to  show  a  balance 
of  $6,424.38,  accepted  his  resignation  and  ordered  the 
papers  of  the  case  turned  over  to  the  clerk  of  the  court. 

The  Tritch  will  case,  involving  the  disposition  of  an 
estate  valued  at  more  than  a  million  dollars,  was  another 
matter  that  attracted  more  than  usual  attention  at  the  time 
of  its  decision.  Judge  Steele  refused  to  admit  the  will  to 
probate,  mainly  because  it  was  eccentric  and  capricious,  and 
further  because  it  involved  apparently  an  unjust  and 
unreasonable  discrimination  among  the  heirs.  Judge  Steele's 
decision  in  the  Tritch  case  is  a  good  illustration  of  the  care- 
ful attention  he  gave  to  such  matters,  and  of  his  clear  vision 
of  justice  as  well  as  his  comprehensive  grasp  of  the  legal 
principles  involved  in  his  judgments. 


THE    TRIBUNAL    OF    THE    PEOPLE 


81 


The  case  of  the  estate  of  Ezra  M.  Bell  was  another 
matter  of  general  public  interest.  In  this  case  it  was  the 
widow  who  was  insane,  and  Bell,  by  instruments  of  will 
and  deed,  had  placed  his  estate  in  the  hands  of  trustees  for 
the  benefit  of  Trinity  Church,  with  the  provision  that  all 
of  the  income,  or  so  much  of  it  as  should  be  necessary, 
should  be  applied  to  Mrs.  Bell's  comfortable  support. 
Application  was  made  to  the  court  in  the  name  of  Mrs.  Bell 
to  allow  her  conservator  to  take  half  of  the  estate  under  the 
statute  instead  of  continuing  the  arrangement  by  which  she 
was  receiving  her  maintenance  from  the  trustees.  In  decid- 
ing the  case.  Judge  Steele  said : 

"I  have  concluded  it  is  for  the  best  interests  of  the  ward  that 
the  trustees  retain  the  estate.  Under  the  provisions  of  the  will  she 
is  entitled  to  support  and  maintenance  even  to  the  entire  income  of 
the  estate.  She  needs  nothing  else.  If  she  had  other  property,  she 
would  be  unable  to  manage  it  because  she  is  incurably  insane.  Even 
if  she  had  an  estate  in  her  own  name,  she  would  be  unable  to  dis- 
pose of  it  at  her  death,  for  an  insane  person  cannot  make  a  will. 
Her  brothers  and  sisters  are  not  to  be  considered  in  this  matter.  It 
appears  that  Mr.  Bell  wished  to  furnish  his  wife  with  an  income 
from  the  estate  during  her  life  and  that  it  was  his  expressed  wish 
that  none  of  his  or  her  relatives  should  obtain  any  of  the  estate. 
By  virtue  of  the  deed  there  is  a  possibility  at  least  that  if  she  accepts 
under  the  statute,  she  will  get  no  part  of  the  income  from  the  real 
estate.  The  personal  property  has  been  used  up.  So  she  might  lose 
her  entire  estate.  Therefore  I  rescind  the  order  heretofore  made 
allowing  the  conservator  to  elect  under  the  statute." 

Even  the  domestic  animals  came  within  the  scope  of 
the  benevolence  and  humanity  of  Judge  Steele's  court.  He 
sentenced  to  six  months  in  the  county  jail  one  Christopher 
Mack,  for  "unlawfully,  wantonly,  willfully  and  mali- 
ciously," and,  furthermore,  drunkenly,  beating  a  horse  to 
death,  refusing  to  allow  him  to  escape  imprisonment  by 
paying  for  the  horse,  but  telling  him  that  he  would  have  to 
compensate  its  owner,  in  installments,  after  his  release  from 
jail.  In  later  years,  after  Judge  Steele  had  risen  to  a  higher 
position,  he  took  a  prominent  part  in  the  campaign  against 


82  ROBERT    WILBUR    STEELE 

the  barbarous  and  inhumane  practice  of  docking  horses' 
tails,  and  v/as  largely  instrumental  in  securing  the  adoption 
of  the  law  that  has  stamped  out  that  folly  in  this  state. 

One  Saturday  afternoon  in  March,  1900,  an  unusual 
scene  was  presented  in  the  County  Court.  Eleven  boys  and 
one  girl  between  the  ages  of  eleven  and  sixteen  were  on 
trial,  charged  with  various  offenses.  Eight  were  accused 
of  truancy  from  school  attendance,  one  of  theft,  one  of 
assault  and  battery,  one  of  stabbing  another  boy  with  a 
knife,  and  the  girl  of  being  incorrigible.  So  far  as  the 
mere  presence  of  these  juvenile  delinquents — they  called 
them  frankly  criminals  in  those  days — was  concerned,  there 
was  nothing  unusual  in  the  occurrence.  Such  compulsory 
attendance  in  the  minor  courts  of  justice  had  been  customary 
during  the  judicial  service  of  Judge  Steele;  boys  and  girls 
had  faced  their  accusers  and  their  judges  in  many  lands 
and  for  hundreds  of  years  before  there  was  any  attempt  to 
discriminate  between  such  youthful  offenders  and  the  older 
and  more  hardened  criminals.  But  upon  this  eleventh  day 
of  March,  1900,  a  new  experiment  in  justice  was  being 
tried.  It  was  what  Judge  Steele  had  designated  as  his 
"Juvenile  Field  Day,"  and  he  made  the  announcement  that 
he  proposed  to  continue  the  practice  during  his  term  of 
ofHce,  or  until  all  the  children  of  the  county  should  go  to 
school  regularly  and  cease  from  offenses  against  the  peace 
and  dignity  of  the  state  of  Colorado. 

Relatives,  teachers  and  friends  of  the  culprits  crowded 
the  courtroom,  their  interest  in  the  individuals  mingled  with 
a  lively  curiosity  to  learn  what  new  form  of  justice  was  to 
be  dispensed  that  day.  A  deputy  district  attorney  was  still 
there  to  represent  the  power  and  majesty  of  the  great  state 
of  Colorado,  and  a  truant  officer  was  there  as  a  sort  of 
inferior  constable  and  witness.  ("I  am  the  truant  officer; 
God  help  me !"  he  said  in  an  undertone  to  a  bystander.) 


THE   TRIBUNAL    OF    THE    PEOPLE  83 

But  from  the  beginning  it  was  evident  that  a  new  role  had 
been  created  in  the  judicial  system,  and  the  presiding  judge 
became  the  children's  mediator  and  friend.  He  was  there 
not  to  punish,  but  to  help ;  not  to  condemn  beyond  redemp- 
tion for  past  offenses,  but  to  remove  obstacles,  to  point  out 
error  and  folly  and  to  open  the  way  toward  honorable  and 
useful  citizenship.  As  yet  the  machinery  of  the  law  was 
lacking  for  the  full  accomplishment  of  such  a  purpose,  but 
Judge  Steele  did  the  best  he  could  with  the  means  at  hand. 
Fred,  who  was  charged  with  absence  from  school,  vagrancy 
and  theft,  came  into  court  with  two  loaves  of  bread  and 
seven  boiled  potatoes  in  his  blouse,  and  was  sent  to  the 
reform  school.  Roy,  without  home  and  without  friends, 
who  had  not  been  at  school  for  a  long,  long  time,  was  sen- 
tenced to  the  same  refuge.  Clement's  case  was  that  of  evil 
associations  and  incorrigibility,  and  his  parents  agreed  that 
there  was  no  other  course  open  than  to  send  him  to  the 
reform  school ;  but  the  mother  fainted  in  court  when  the 
sentence  was  pronounced.  Louis,  who  was  accused  of  cut- 
ting another  boy,  received  the  usual  sentence,  which  was 
suspended  because  he  was  defending  himself  from  attack. 
Eddie,  abandoned  by  his  parents,  wanted  to  go  to  the  reform 
school  so  that  he  could  get  an  education,  and  his  case  was 
taken  under  advisement,  with  the  result  that  he  was  sent  to 
a  farm  where  he  could  learn  to  work  and  study.  Henry, 
Albert,  John  and  Russell  were  all  convicted  and  formally 
sentenced  to  the  reform  school,  upon  which  they  burst  into 
tears  and  wished  they  had  been  good,  thereby  arousing  the 
smiling  contempt  of  some  of  the  more  hardened  criminals 
present.  Judge  Steele  then  talked  with  each  of  the  four 
boys,  and,  having  secured  promises  that  they  would  attend 
school  regularly,  he  suspended  their  sentences.  A  second 
Eddie,  and  Freddie,  also  received  the  suspended  sentence 
treatment,  and  Edna,  a  negro  girl,  was  sentenced  to  the 
state  home. 


84  ROBERT    WILBUR    STEELE 

A  personal  interest  on  the  part  of  the  judge  in  each 
of  the  offenders,  a  personal  inquiry  by  conversation  with 
each  one  in  order  to  ascertain  the  causes  and  the  conditions 
of  the  development  of  criminal  traits  and  acts,  an  individual 
application  of  the  legal  prescription  to  each  case,  and  a 
suspension  of  legal  punishment  under  promise  of  good 
behavior  for  such  as  seemed  to  merit  such  consideration, 
were  the  features  of  Judge  Steele's  Juvenile  Field  Day,  and 
these  have  been  the  principles  according  to  which  has  been 
established  the  structure  of  the  juvenile  courts  of  a  later 
day. 

Of  course,  that  was  not  the  beginning  of  Judge  Steele's 
interest  in  youthful  truants  and  criminals.  Long  before  the 
Juvenile  Field  Day  had  been  inaugurated,  one  morning  a 
boy  of  eight,  and  small  for  his  years,  was  brought  into  the 
court,  to  determine  the  question  of  his  custody  between  his 
legal  guardian  and  an  aunt  whom  the  boy  had  learned  to 
love.  Witnesses  had  been  heard,  the  learned  lawyers  had 
made  their  pleas,  and  the  judge  had  given  his  decision 
according  to  the  law  and  the  facts  presented.  But  the  case 
was  not  ended.  Force  would  be  necessary  to  take  the  crying, 
clinging  child  from  his  aunt.  Then  the  judge  called  the 
little  fellow  close  to  him  and  they  whispered  to  each  other 
for  a  moment,  and  the  former  decision  was  reversed. 

Nor  was  the  Juvenile  Field  Day,  which  Judge  Steele 
established,  the  end  of  the  movement  for  the  redemption  of 
erring  and  unfortunate  children.  Judge  Steele's  successor 
on  the  county  bench  was  Judge  Ben  B.  Lindsey,  who  gained 
a  world-wide  reputation  as  the  judge  of  a  court  established 
exclusively  for  juvenile  offenders.  Judge  Lindsey  himself 
freely  and  frankly  acknowledged  the  value  and  importance 
of  Judge  Steele's  services  in  this  great  work  of  reform. 
In  1908  Judge  Lindsey  wrote  to  Justice  Steele,  of  the 
Supreme  Court:     "I  wish,  if  you  could,  you  would  write 


THE    TRIBUNAL    OF    THE    PEOPLE  85 

the  opinion  in  the  contributory  delinquent  case  that  is  now 
before  you.  It  seems  to  me  that  your  experience  and  train- 
ing in  the  County  Court  and  knowledge  of  the  chancery 
powers  in  protecting  the  material  and  physical  welfare  of 
the  child  in  that  court  and  disposition  to  apply  those  prin- 
ciples to  protecting  its  moral  welfare,  make  you  more  emi- 
nently fit  to  expound  this  doctrine  than  any  of  the  other 
judges.  Again,  I  have  a  little  sentiment  in  the  matter.  You 
were  the  first  judge  to  enforce  our  law  of  1899  which  con- 
tained the  germ  of  the  present  Juvenile  Laws,  and  in  refer- 
ring to  the  matter  I  want  to  refer  to  the  decision  by  you." 
And  no  one  gave  more  hearty  recognition  to  Judge  Lind- 
sey's  splendid  work  in  developing  the  Juvenile  Court  than 
was  bestowed  by  Judge  Steele  upon  the  younger  man  who 
had  begun  his  career  of  success  and  fame  in  the  law  offices 
of  Steele  &  Malone.  Not  Judge  Lindsey  alone,  but  other 
county  judges  also,  in  Colorado  Springs,  in  Pueblo  and  in 
other  Colorado  cities,  helped  to  make  Colorado  a  conspic- 
uous leader  in  the  work  of  seeing  and  doing  the  state's  duty 
toward  the  bad  boys  and  girls,  and  toward  those  that  were 
only  in  danger  of  becoming  bad.  And  other  noble  men  and 
women  in  all  the  states  contributed  their  thought  and  effort 
in  establishing  a  reform  that  is  now  almost  universally 
accepted  through  the  civilized  world. 


CHAPTER  VI 

UNOFFICIAL  OPINIONS   AND   ACTIVITIES 

Outside  the  employment  of  his  official  positions,  as  a 
citizen  and  as  a  man  Robert  Steele  was  always  actively 
interested  in  whatever  cause  was  for  the  welfare  of  the  city 
or  the  state,  and  he  was  always  ready  when  called  upon 
for  service  that  would  be  a  benefit  to  someone  that  needed 
his  help.  One  of  the  letters  of  which  a  copy  remains  he 
wrote  to  Mayor  Van  Horn,  while  he  was  district  attorney, 
in  the  calamitous  year  of  1893,  urging  the  maintenance  of 
abundant  street  lights  as  a  means  of  preventing  highway 
robberies,  and  expressing  the  belief  that  economy  might 
better  be  secured  elsewhere.  When  the  disastrous  Iroquois 
Theater  fire  occurred  in  Chicago,  Judge  Steele  promptly 
took  steps  to  secure  the  safety  of  Denver  theatergoers  and 
enforced  a  rearrangement  of  seats  and  exits  in  one  of  the 
larger  theaters  of  the  city. 

Robert  Steele's  retentive  memory  and  his  acquaintance 
with  general  literature  was  well  illustrated  upon  one  occa- 
sion, when  he  was  still  a  law  student,  when  he  attended  a 
public  meeting,  at  which  the  speaker  began  the  quotation: 

"As  some  tall  cliff" 

and  was  unable  to  continue,  the   following  words  having 

eluded  his  memory.    Judge  Steele,  who  was  seated  near  the 

speaker,  promptly  relieved  his  embarrassment  by  supplying 

the  words, 

"that  lifts  its  awful  form 

Swells  from  the  vale  and  midway  leaves  the  storm." 

and  received  the  cordial  thanks  of  the  forgetful  orator. 

When  the  anti-toxin  treatment  for  diphtheria  was  dis- 
covered,  it   was   Judge   Steele's   contribution   of  $100  that 


UNOFFICIAL    OPINIONS    AND    ACTIVITIES  87 

brought  the  lirst  portion  of  the  new  remedy  to  Denver,  for 
use  at  the  city  hall  by  Health  Commissioner  Munn. 

He  liked  to  travel,  as  is  the  case  with  most  men,  and 
the  story  of  the  years  should  include  at  least  a  reference  to 
a  trip  to  California  and  another  to  Cuba,  while  visits  to  the 
eastern  states,  for  business  or  pleasure,  were  too  frequent 
for  detailed  mentiork.  In  connection  with  one  such  early 
trip  the  story  is  told  by  a  friend  and  frequent  companion  :* 

"We  were  about  to  start  to  New  York  City  together. 
The  judge  asked  whether  I  had  any  choice  of  route  and  I 
told  him  I  had  none.  He  said  that,  if  he  were  going  alone, 
he  would  go  by  the  Santa  Fe  ( which  takes  six  or  seven 
hours  longer  between  Denver  and  Chicago  than  some  other 
routes),  and  after  some  discussion  I  found  that  he  patron- 
ized the  Santa  Fe  whenever  he  could  because  in  former  days, 
when  he  was  in  business  and  before  he  held  a  public  posi- 
tion, he  had  some  business  dealings  with  that  company. 
We  went  to  the  Santa  Fe  offices  to  get  our  tickets.  The 
agent  of  the  company  insisted  upon  giving  him  a  pass, 
which  he  refused,  because  after  he  was  elected  to  the  bench 
he  never  rode  on  a  pass,  although  it  was  the  common  prac- 
tice for  anyone  with  any  influence  whatever  to  ride  on  a 
pass  in  those  days.  He  would  not  take  the  pass,  but  his 
sentiment  for  the  road  was  there.  He  would  take  six  or 
seven  hours  longer  to  patronize  a  railroad  with  whose  offi- 
cials he  had  had  friendly  business  relations  in  long  gone 
years.  Frequently  he  acted  because  of  a  sentiment  for  some- 
thing in  the  past,  and  I  could  tell  of  many  instances  where, 
in  the  little,  everyday  affairs  of  life,  Judge  Steele  stepped 
out  of  his  way  to  respond  to  a  feeling  of  sentiment  for  old 
times,  or  old  places  or  old  friends.  But,  you  may  ask,  did 
not  this  unfit  him  for  acting  in  an  impartial  way  in  the 


*Mr.  Guy  Leroy  Stevick. 


88  ROBERT    WILBUR    STEELE 

larger  affairs  of  life'?  No,  not  in  the  larger  nor  in  the 
smaller  affairs  of  life.  The  larger  affairs  are  just  made  up 
of  the  smaller  affairs.  True  sentiment  does  not  do  wrong. 
True  sentiment  is  just  the  great  heart  of  humanity,  and  he 

who  truly  follows  it  will  not  go  wrong." 

*     *     * 

That  Robert  Steele's  patriotism  was  not  merely  an 
empty  profession  was  demonstrated  at  the  time  of  the  war 
with  Spain,  when  he  was  County  judge.  He  bought  a 
manual  of  military  tactics  and  began  to  study  it  in  prepara- 
tion for  service  as  a  soldier.  "I  am  going  to  the  war  if  my 
country  needs  me,"  he  quietly  said  to  a  friend,  but  made  no 
public  or  general  announcement  of  his  purpose.  A  short 
time  later  he  offered  his  services  to  Governor  Adams,  who 
assured  him  that,  under  the  conditions  then  existing,  his 
services  were  more  needed  in  the  County  courtroom  than  in 
the  concentration  camps  of  the  volunteers,  but  gave  the 
requested  promise  that  if  the  need  arose  Robert  Steele  should 
have  his  place  in  the  ranks  of  the  soldiers  of  liberty  and  the 
nation's  defenders. 

While  judge  of  the  Supreme  Court,  Robert  Steele  was 
much  interested  in  the  law  library  of  the  capitol,  and  he 
helped  in  various  ways  to  make  that  library  more  convenient 
and  useful  to  lawyers  and  the  general  public.  Among  other 
things,  he  procured  the  binding,  in  convenient  form,  of  a 
large  number  of  pamphlets,  which  were  previously  unavail- 
able for  use  on  account  of  lack  of  arrangement. 

Another  matter  in  which  he  was  much  interested  in 
this  period  was  the  constitution  of  the  new  state  of  Okla- 
homa. The  constitutional  cases  brought  before  Justice 
Steele  and  his  associates  had  impressed  him  with  the  dan- 
gerous possibilities  of  misinterpretation  and  usurpation. 
The  makers  of  the  Oklahoma  constitution  were  fully  awake 
to  these  dangers,  and  some  of  the  prominent  members  of 


UNOFFICIAL    OPINIONS    AND    ACTIVITIES  89 

the  convention  in  that  state  were  in  consultation  with  Judge 
Steele  regarding  the  unique  features  of  that  constitution 
which  received  such  severe  criticism,  but  which  ought  to  be 
read,  in  part  at  least,  in  the  light  of  Colorado  experiences 
and  of  the  decisions  of  the  Colorado  Supreme  Court,  which 
were  fresh  at  the  time  of  its  adoption. 

*     *     * 

That  Robert  Steele  might  have  taken  high  rank  as  a 
public  speaker  is  the  universal  belief  of  those  who  knew 
him  well.  From  his  high  school  days  he  had  the  ability 
both  to  construct  and  to  deliver  his  opinions  upon  matters 
of  public  interest  in  pleasing  and  impressive  form  and 
manner.  He  was  much  in  demand  as  a  public  speaker,  and 
it  was  only  as  a  result  of  his  own  avoidance  of  prominence 
and  publicity  that  he  was  not  almost  constantly  engaged 
as  a  political  and  social  orator.  As  a  matter  of  fact,  he 
rarely  appeared  as  a  speaker  on  public  occasions,  and  the 
subjects  that  commanded  his  support  in  this  way  give  good 
proof  of  the  matters  in  which  he  was  most  interested. 

On  January  9,  1899,  a  "Jackson  dinner"  was  held, 
which  was  especially  interesting  as  a  celebration  of  the 
recently  consummated  fusion  of  the  Democrats,  Silver 
Republicans  and  Populists  of  Colorado.  Judge  Steele,  who 
had  been  re-elected  as  County  judge  in  the  preceding 
November  on  the  fusion  ticket,  was  one  of  the  speakers  and 
said  in  part : 

"Silver  Republicans  are  willing  to  join  with  you  in 
celebration  of  this  great  day.  They  recognize  in  Jackson  a 
peerless  leader  and  advocate  of  the  people  against  combined 
wealth,  whose  crowning  act  was  to  throttle  a  giant  corpora- 
tion, the  like  of  which  has  not  been  seen  in  the  country 
until  trusts  and  monopolies  were  fostered  by  the  infamous 
financial  policy  of  the  party  now  in  power.  *  *  *  ^he 
Democratic  party  was  born  again  at  Chicago  in  1896,  and, 


90  ROBERT    WILBUR    STEELE 

with  the  aid  of  the  People's  party  and  the  Silver  Repub- 
lican party,  cast  more  votes  for  its  candidate  than  were  cast 
for  all  the  candidates  at  any  election  prior  to  1876. 

"I  believe  there  is  a  unity  of  purpose  on  the  part  of 
the  Democratic,  the  People's  and  the  Silver  Republican 
parties  and  that  purpose  is  to  restore  silver  to  its  place  as 
a  money  metal.  The  monied  interests  will,  by  strategy  and 
insidious  wiles,  attempt  to  foist  other  issues  upon  us.  They 
will  not  succeed,  and  the  triple  fusion  has,  I  believe,  come 
to  stay. 

"Jackson  said : 

"  'It  is  to  be  regretted  that  the  rich  and  powerful  too  often 
bend  the  acts  of  government  to  their  selfish  purposes.  Distinctions 
in  society  will  always  exist  under  every  just  government.  Equality 
of  talents,  of  education  or  of  wealth  cannot  be  produced  by  human 
institutions.  In  the  full  enjoyment  of  the  gifts  of  Heaven  and  the 
fruits  of  superior  industry,  economy  and  virtue,  ever>-  man  is  equally 
entitled  to  protection  by  law;  but  when  the  laws  undertake  to  add 
to  these  natural  and  just  advantages  artificial  distinctions,  to  grant 
titles,  gratuities  and  exclusive  privileges,  to  make  the  rich  richer 
and  the  potent  more  powerful,  the  humble  members  of  society — the 
farmers,  mechanics  and  laborers — who  have  neither  the  time  nor 
the  means  of  securing  like  favors  to  themselves,  have  a  right  to 
complain  of  the  injustice  of  their  government.  There  are  no  neces- 
sary evils  in  government.  Its  evils  exist  only  in  its  abuses.  If  it 
would  confine  itself  to  equal  protection,  and,  as  Heaven  does  its 
rain,  shower  its  favors  alike  on  the  high  and  the  low,  the  rich  and 
the  poor,  it  would  be  an  unqualified  blessing.' 

"To  these  ideas  we  fully  subscribe.  We  will  unite 
with  you  in  the  essential  issues,  namely,  the  free  coinage 
of  silver  and  the  destruction  of  the  trusts.  We  believe  the 
surest  method  of  preventing  the  combinations  of  wealth  is 
to  coin  silver  at  the  ratio  of  16  to  1. 

"We  will  not  differ  with  you  concerning  less  important 
matters.  We  will  ignore  the  differences  now  besetting  you, 
and  will  draw  the  veil  of  charity  over  Democracy  of  the 
past,  and  will  hail,  as  the  coming  of  the  dawn,  the  new 
Democracy — the  triple  fusion — which  will  restore  to  us  the 
money  of  the  constitution  and  make  us  prosperous  and 
happy. 


UNOFFICIAL   OPINIONS   AND   ACTIVITIES  9I 

"May  God  bless  and  prosper  our  people  under  the 
administration  of  Charles  S.  Thomas  as  they  have  been 
blessed  and  prospered  under  the  administration  of  Alva 
Adams." 

On  January  31,  1907,  there  was  held,  under  the  initia- 
tive of  Governor  Henry  A.  Buchtel,  what  was  appropriately 
named  a  Good-Fellowship  dinner,  with  the  expressed  pur- 
pose of  harmonizing  conflicting  interests,  reconciling  hos- 
tilities, and  forwarding  united  efforts  for  the  common  good. 
One  of  the  speakers  was  Justice  Steele  of  the  Supreme 
Court,  who  said : 

"We  are  here  in  the  cause  of  upbuilding  the  state  and 
improving  the  condition  of  our  people.  Upon  this  subject 
none  need  be  for  a  party,  all  may  be  for  the  state,  and  we 
can  be  as  the  Romans  were  in  the  good  days  of  old. 

"Realizing  that  many  flowers  of  friendship  never 
bloom  simply  because  men  do  not  know  each  other,  our  host 
has  designed  these  Good-Fellowship  dinners,  that  all  who 
stand  up  for  Colorado  may  greet  each  other  as  friends. 
While  we  are  feasting  ourselves,  let  me  recall  to  your  minds 
some  of  the  achievements  of  those  sturdy  characters  who 
braved  the  terrors  of  the  wilderness  and  struggled  with  the 
wild  beasts  and  wild  men  to  found  at  the  base  of  these 
mountains  a  city  that  is  destined  to  become  one  of  the  great 
cities  of  the  nation,  and  to  establish  a  commonwealth  that 
should  become  the  brightest  jewel  in  the  diadem  of  states. 
They  were  venturesome,  patriotic  and  restless,  and  organ- 
ized here,  without  the  semblance  of  authority  from  the 
nation,  the  territory  of  Jefferson ;  elected  a  full  set  of  offi- 
cers, organized  a  legislature,  and  passed  and  published  laws 
for  its  government — an  action  altogether  unique  in  the  his- 
tory of  the  country.  Their  efforts  to  maintain  an  independ- 
ent  government   were    romantic,   but   not   unpatriotic ;    and 


92  ROBERT    WILBUR    STEELE 

when  the  federal  government  organized  the  territory  of 
Colorado,  the  officers  of  the  territory  of  Jefferson  grace- 
fully gave  way,  and  commanded  recognition  of  the  new 
officers  appointed  by  the  federal  government.  When  we 
remember  that  many  here  were  in  sympathy  with  the  South, 
that  others  were  in  favor  of  establishing  an  independent 
empire  west  of  the  Missouri,  and  that  the  government  could 
not,  for  some  time  at  least,  have  compelled  submission  to 
its  authority,  the  action  of  the  officers  of  the  territory  of 
Jefferson  may  have  changed  the  course  of  this  section,  and 
we  should  revere  them  and  honor  them  for  what  they  did. 

"The  people  were  most  constant  in  their  demands  for 
statehood,  and,  responsive  to  that  demand,  congress,  in 
1864,  passed  an  enabling  act,  and  finally,  in  1865,  the 
people  ratified  a  constitution.  John  Evans  and  Jerome  B. 
Chaffee  were  elected  senators  of  the  United  States,  and 
proceeded  to  Washington,  expecting  to  take  their  seats  in 
the  senate,  but  they  were  informed  that  they  would  be 
admitted  to  the  senate  upon  condition  (and  I  have  it  from 
one  of  the  actors)  that  they  would  support  the  president 
and  his  policy.  This  they  declined  doing,  and  the  president 
promptly  vetoed  the  bill  for  the  admission  of  Colorado. 
This  action  delayed  statehood  for  ten  years,  but  not  to  our 
detriment.  Had  these  men  surrendered  principle  for  an 
office,  our  progress  would  have  been  retarded  for  many 
years,  and  we  owe  them  a  debt  of  gratitude. 

"The  promoters  of  the  Kansas-Pacific  Railroad  de- 
manded of  the  people  here  a  tribute  in  the  way  of  bounty 
amounting  to  a  large  percentage  of  the  assessed  valuation 
of  all  the  property  of  this  county,  and  threatened  to  cross 
the  mountains  away  to  the  south,  skirting  our  southern 
boundary,  unless  bonds  were  voted  to  aid  in  the  building 
of  the  road  to  Denver.  The  proposition  was  declined,  and 
Governor   Evans,   whose    son   projected   our    Northwestern 


UNOFFICIAL   OPINIONS    AND   ACTIVITIES  93 

Railroad,  projected  and  financed,  with  the  enthusiastic  sup- 
port of  the  people,  the  Denver  Pacific  Railroad,  connecting 
Denver  with  the  Union  Pacific  at  Cheyenne,  thus  compel- 
ling the  Kansas  Pacific  to  build  into  Denver,  settling  and 
permanently  fixing  not  only  Denver  but  Colorado  as  a 
railroad  center. 

"These  epochs  I  have  mentioned  are  but  a  few  of  those 
of  our  early  history  that  are  worthy  of  consideration.  I 
have  mentioned  them  because  they  seem  to  be  decisive  points 
in  the  career  of  our  people,  and  show  the  loyalty,  the  enter- 
prise, the  courage — the  character,  in  fact — of  those  who  laid 
for  us  a  substantial  foundation  upon  which  we  are  building 
a  permanent  superstructure  that  shall  remain  until  time 
unveils  eternity.  We  can  never  pay  the  debt  we  owe  to 
these  sterling  characters  wl  o  thus  builded  for  us. 

"When  silver  slumper',  when  the  banks  failed,  when 
mines  closed,  when  values  vanished,  when  debts  doubled, 
we  were  all  in  distress ;  but  we  have  passed  through  that 
period  and  now  we  are  on  another  basis.  True  that  credi- 
tors have  the  debtors'  property,  but  on  the  whole  we  were 
benefited  by  the  adversity.  Let  us  not  have  another  such 
boom ;  it  does  not  pay.  That  boom  lowered  the  moral 
standard  and  injured  our  reputation  as  a  state.  The  more 
buyers  there  were  for  lots  in  North  Denver,  Weld  County, 
the  less  there  are  to  buy  at  fair  prices  in  Denver  proper. 
The  more  there  were  who  bought  lots  on  Green  Mountain, 
thinking  they  were  buying  in  Denver,  the  less  there  are  now 
to  buy  on  Capitol  Hill.  We  are  favored  as  few  states  are, 
in  the  very  infancy  of  our  development,  with  many  millions 
of  acres  of  irrigable  land,  soon  to  be  made  productive 
through  the  use  of  water  from  storage  reservoirs.  With 
untouched  coal  fields,  with  undeveloped  veins  of  precious 
mineral,  our  future  greatness  is  beyond  calculation,  but  our 
climate  is  our  greatest  asset.     Our  almost  eternal  sunshine 


94  ROBERT    WILBUR    STEELE 

revives  our  spirits  and  preserves  our  health;  it  induces 
open-air  recreation ;  it  kills  the  germs  of  disease ;  it  affords 
labor  the  healthful  outdoor  employment;  it  sweetens  the 
beet ;  it  brightens  the  bloom  upon  the  peach ;  it  colors  the 
apple ;  it  flavors  the  melon ;  it  grants  a  profusion  of  wild 
flowers ;  it  matures  the  grass  and  grain  without  decay.  This 
sunshine,  showering  its  manifold  blessings,  charms  us,  and 
makes  us  long  to  return  to  it  and  our  favored  land. 

"The  opportunities  for  acquiring  wealth  were  never 
better  than  now.  All  business  and  enterprises  have  a  fair 
field,  and  capital  invested  is  assured  an  abundant  return ; 
but  we  shall  be  poor,  indeed,  if  in  the  acquirement  of  wealth 
we  neglect  the  essentials  of  good  citizenship.  Wealth  is  not 
an  essential  of  good  citizenship,  nor  can  it  alone  make  a 
state ;  but  we  must  have  men  who  know  their  rights  and 
have  the  courage  to  maintain  them.  A  mind  solely  bent  on 
acquiring  wealth  accustoms  the  conscience  to  become  pliable 
to  the  touch  of  every  interest,  and  looks  with  complacence 
and  indifference  upon  the  inroads  made  by  the  wicked  and 
designing  upon  the  liberty  of  the  citizen.  You  have  lately 
heard  of  the  proposition,  publicly  made,  to  have  the  constitu- 
tion construed  to  meet  the  changed  conditions,  and  it  is  said 
with  confidence  that  such  will  be  done  when  the  occasion 
requires.     Mr.  Justice  Brewer  said  but  a  few  months  ago : 

"  'Never  let  the  courts  attempt  to  change  laws  or  constitution 
to  meet  what  they  think  present  conditions  require.  When  they  do 
this,  they  clearly  usurp  powers  belonging  to  the  legislature  and  the 
people.  The  most  glorious  product  of  our  civilization  is  not  the 
entrancing  beauty  of  the  capitol,  its  marvelous  manufacturing,  min- 
ing and  other  industries,  but  rather  the  individual's  possession  of 
an  independent,  conscientious,  public-spirited  citizenship.  Whatever 
may  be  the  changes  of  the  future,  whatever  the  new  conditions  of 
social,  business  or  political  life,  the  time  will  never  come  when 
anything  will  justify  shackling  the  Golden  Rule  or  striking  down 
the  Declaration  of  Independence.' 

"While  we  are  enjoying  this  period  of  prosperity,  this 
dangerous  age  of  commercialism,  let  us  not  forget  the  les- 


UNOFFICIAL    OPINIONS    AND   ACTIVITIES  95 

sons  of  the  past  nor  our  duty  to  our  children.  We  should 
have  constantly  before  us  the  thought  that  our  fathers 
transmitted  to  us  civil  and  religious  liberty,  to  be  sacredly 
maintained  to  transmit  to  our  children  and  our  children's 
children  forevermore.  If  through  our  indifference  or  inat- 
tention these  gifts  of  liberty,  or  any  of  them,  are  taken 
away  from  even  the  most  wicked  of  us,  we  cannot  transmit 
them  to  our  children,  and  we  shall  be  known  to  history  as 
a  recreant  people,  and  faithless  to  a  sacred  trust;  but  if  we 
upbuild  this  state,  cultivate  the  soil,  extend  our  trade,  help 
the  poor,  respect  the  moral  and  civil  law,  preserve  the  con- 
stitutional guarantees  of  personal  rights,  and  maintain 
liberty,  we  shall  be  blessed  by  our  children  and  shall  receive 
the  sweet  approbation  of  Heaven." 

A  few  days  later  Judge  Steele  received  the  following 
letter : 

My  Dear  Judge — I  want  to  express  my  appreciation  of  the 
remarks  j'ou  made  at  the  banquet  the  other  night.  I  am  proud  of 
the  fact  that  you  are  now  the  chief  justice,  and  I  am  also  proud  of 
the  fact  that  the  chief  justice  of  our  Supreme  Court  should  think 
that  there  is  something  to  be  boosted  besides  material  prosperity, 
and  that  there  is  such  a  thing  as  character  which  is  more  important 
than  dollars.  Sincerely  yours, 


Quite  a  unique  experience  in  public  dinners  was  that 
of  the  Garfield  banquet,  which  was  held  in  Denver  June 
20,  1907.  James  R.  Garfield,  then  secretary  of  the  interior, 
had  come  to  the  West  to  allay,  if  possible,  the  rising  tide 
of  popular  disapproval  of  the  conservation  policy  of  the 
Roosevelt  administration.  As  head  of  the  department  he 
was  ostensibly  the  object  of  the  many  severe  criticisms  that 
had  been  made,  and  among  the  prominent  guests  at  the 
banquet  the  majority  had  been  either  outspoken  in  con- 
demnation or  manifestly  in  sympathy  with  the  critics  of 
the  president  and  his  secretary.     It  was  Justice  Steele  who 


96  ROBERT  WILBUR  STEELE 

was  chosen  to  preside  over  a  situation  where  the  elements 
of  a  social  and  political  explosion  were  dangerously  appar- 
ent. With  rare  tact  and  good  humor  Justice  Steele  accom- 
plished his  difficult  task.  The  son  of  the  martyred  president 
found  himself  encircled  by  friends  and  well-wishers,  and, 
while  none  of  the  just  claims  of  the  West  were  abated,  the 
possibilities  of  a  friendly  understanding  and  compromise 
of  conflicting  interests  were  greatly  advanced.  A  few  days 
later  Justice  Steele  was  greatly  pleased  to  receive  from 
Hon.  J.  C.  Helm  the  following  note : 

"My  Dear  Judge — Consider  yourself  retained  as  official  toast- 
master  at  all  of  my  banquets  during  the  rest  of  your  natural  life. 
I  congratulate  you.  Before  the  entertainment  I  was  sorry  for  you ; 
when  it  was  over  I  was  envious  of  you.  You  did  splendidly  and 
contributed  in   large  measure  to  make  the  occasion  the  magnificent 

success  it  was." 

^      ^      ^ 

On  December  11,  1908,  a  public  meeting  was  called  in 
the  Denver  auditorium  to  protest  against  the  surrender  of 
a  Russian  political  refugee  whose  extradition  had  been 
demanded  by  the  Russian  government  for  alleged  criminal 
offenses.  The  principal  speaker  was  Mrs.  Mary  C.  C. 
Bradford,  who  was  introduced  by  Judge  Steele  in  these 
words:  "The  next  speaker  is  a  direct  descendant  of  a  signer 
of  the  Declaration  of  Independence.  When  you  hear  her 
voice  and  her  words,  you  will  realize  that  the  Liberty  Bell 
has  not  ceased  to  ring." 

Judge  Steele  further  said: 

"We  are  assembled  in  this  splendid  structure,  erected 
by  the  command  of  the  people  of  Denver,  to  protest  against 
the  degrading  of  the  friendly  processes  of  extradition  to  the 
base  use  of  wringing  from  witnesses  the  secrets  and  the 
names  of  Russian  revolutionists.  We  are  here  to  protest 
against  the  surrender  of  the  refugee's  from  political  perse- 
cution to  the  minions  of  the  czar,  believing  from  the  experi- 
ence of  those  who  have  voluntarily  returned  that  they  will 


UNOFFICIAL   OPINIONS    AND   ACTIVITIES  97 

not  be  afforded  a  trial  and  will  be  murdered  immediately 
upon  reaching  the  domain  of  Russia.  Individually  I  do 
not  believe  that  these  men  will  be  surrendered,  unless  under 
the  treaty  they  should  be,  and  I  am  willing  to  submit  to  the 
judgment  of  the  secretary  of  state.  He  knows,  as  well  as 
we  do,  that  this  government  was  founded  by  revolutionists 
for  revolutionists,  that  this  government  has  never  surren- 
dered a  political  refugee,  and  that  to  do  so  would  merit  the 
reprobation  of  the  civilized  world.  Under  the  guise  of  the 
charge  mentioned  in  the  treaty  it  has  been  many  times 
attempted,  but  at  no  time  has  a  political  refugee  been  sur- 
rendered. Great  Britain  has  tried  it;  Canada  has  tried  it; 
Mexico  before  the  republic  tried  it.  But  the  answer  always 
has  been  that  this  country  is  an  asylum  for  the  political 
refugee  of  every  clime.  So  I  do  not  fear  that  these  men 
will  be  improperly  surrendered.  But  I  would  take  this 
occasion  to  send  greeting  to  the  Russian  revolutionists  and 
say  to  them  that  our  hearts  throb  in  sympathy  for  them 
and  that  we  sincerely  wish  that  they  may,  upon  the  ruins 
of  a  despotic   and  tyrannical   government,   build  a  nation 

dedicated  to  liberty." 

*     *     * 

At  a  celebration  of  the  fiftieth  anniversary  of  the  dis- 
covery of  gold  in  the  Rocky  Mountains,  at  Idaho  Springs, 
May  7,  1909,  Judge  Steele  delivered  an  address,  in  which, 
after  reviewing  some  of  the  early  history  of  the  region,  he 
said : 

"Our  fathers  transmitted  to  us  the  gifts  of  civil  and 
religious  liberty,  to  be  kept  inviolate  for  transmission  to 
our  children.  Let  us,  on  the  fiftieth  anniversary  of  our 
beginning — as  we  did  at  the  start  and  upon  our  admission — 
resolve  to  transmit  to  our  children  the  liberty  transmitted 
to  us.  If,  through  indifference  or  inattention,  these  gifts 
are  lost  to  us,  we  shall  be  faithless  to  our  children  and 


98  ROBERT    WILBUR    STEELE 

recreant  to  a  sacred  trust.  We  cannot  maintain  them  invio- 
late if  the  wicked  among  us  lose  theirs.  They  were  given 
for  wicked  and  pure  alike.  Let  us  upbuild  our  state  and 
still  maintain  our  liberties ;  transmit  to  our  children  wealth 
if  we  must,  but  grapple  the  gifts  of  liberty  to  your  souls 
with  hoops  of  steel,  as  you  should  your  true  friend,  or  they 
will  escape  you.  The  struggle  is  eternal.  You  must  gather 
the  manna  of  liberty  daily,  to  use  it. 

"If  you  leave  your  children  a  land  governed  by  a 
privileged  class  and  not  by  all  the  people — a  land  where 
the  laws  grind  the  poor  and  the  rich  men  rule  the  law — you 
will  leave  them  poor  indeed.  But  if  you  maintain  liberty, 
preserve  the  constitutional  guaranties  of  personal  rights, 
respect  the  moral  and  civil  law,  your  children  will  bless 
you  forever  and  forever. 

"Let  us  express  the  sentiment  proclaimed  in  the  first 
issue  of  the  first  paper  published  in  this  section : 

"  'Hurrah  for  the  land  where  the  moor  and  the  mountain 
Are  sparkling  with  treasures  no  language  hath  told; 
Where  the  wave  of  the  river  and  spray  of  the  fountain 
Are  bright  with  the  glitter  of  genuine  gold.'  " 

*      *      * 

July  14,  1909,  Judge  Steele,  on  account  of  the  unfore- 
seen absence  of  Governor  Shafroth,  was  requested  to  make 
the  speech  of  acceptance  at  the  unveiling  of  the  Soldiers' 
monument  on  the  capitol  grounds.     He  said : 

"In  the  absence  of  the  governor  I  have  been  detailed 
to  accept  on  behalf  of  the  state  this  specimen  of  the  crafts- 
man's art.  It  is  accepted  as  a  completed  work.  It  is  not 
my  province  at  this  time  to  recount  the  achievements  of  the 
Colorado  boys.  The  names  inscribed  on  the  monument  will 
stir  the  soul  of  everyone  familiar  with  our  history,  and  the 
surmounting  figure  represents  the  soldier  facing  the  south 
ready  to  repulse  the  advance  of  the  enemy.     The  bitterness 


UNOFFICIAL    OPINIONS    AND    ACTIVITIES  99 

of  that  struggle  has  been  forgotten,  and  the  Union  was 
cemented  upon  the  appearance  of  a  common  foe,  and  now 
soldiers  of  the  North  and  of  the  South  march  side  by  side 
to  strew  the  wealth  of  spring  upon  the  graves  of  the  fallen 
brave.  More  than  forty  years  ago  our  sister,  New  Mexico, 
dedicated  a  monument  to  the  valorous  soldiers  of  Valverde, 
Apache  Canon  and  Glorietta,  and  it  is  proper  that  we, 
although  tardy,  should  erect  this  memorial  in  commerriora- 
tion  of  the  Colorado  soldiers  who  did  so  much  to  save  this 
region  to  the  Union. 

"All  honor  to  the  First  Colorado,  that  marched  across 
the  trackless  waste,  braving  its  perils  and  burdens  to  check 
Sibley's  advance  upon  our  beautiful  treasuries.  All  honor 
to  the  Second  Colorado  that  protected  the  white  settlements 
from  the  butcheries  of  the  redskins.  All  honor  to  the  Third 
Colorado  for  its  great  achievements  in  Kansas  and  Missouri. 

"Most  of  those  engaged  in  that  war  between  brothers 
have  spread  their  tents  on  the  eternal  camping  grounds. 
Let  us  extol  the  survivors  while  they  live ;  let  us  mourn  the 
departed,  while 

"  'Glory  guards,  with  solemn  round,  the  bivouac  of  the  dead.'  " 
*      *      * 

In  an  address,  delivered  before  the  Sons  of  Colorado, 
of  which  society  Robert  Steele  was  an  honored  member,  in 
March,  19 10,  he  paid  a  tribute  to  the  cottonwood  tree. 
Referring  to  the  double  celebration  in  1876  of  the  centen- 
nial of  the  nation  and  the  birth  of  the  state,  he  said :  "We 
knew  that  there  would  be  no  such  pomp  and  military  display 
here  as  we  had  seen  in  the  East,  but  we  did  know  the  temper 
of  our  people,  and  we  knew  that  they  were  patriotic  and 
true,  and  that  they  would  celebrate  the  occasion  as  only 
loyal  people  can.  We  knew  that  there  would  be  no  lavish 
display  of  palms  and  smilax,  of  the  Marechal  Niel,  and  of 


100  ROBERT    WILBUR    STEELE 


rare  and  beautiful  orchids  here ;  but  we  did  know  that  from 
the  profuse  gifts  of  Nature  willing  and  loyal  hands  would 
gather  our  own  bluebell,  our  own  flax,  columbine,  aster  and 
clematis,  and  withal,  our  choicest  lily,  and  would  entwine 
with  these  gifts  of  Nature  the  Stars  and  Stripes  and  deco- 
rate the  homes  and  public  places  with  these  and  our  native 
evergreen  and  cottonwood. 

"Let  me,  right  here,  pay  a  tribute  to  the  humble  cotton- 
wood.  She  is  unpopular  now ;  her  more  beautiful  and  aris- 
tocratic sisters  have  taken  her  place ;  but  she  was,  in  her 
time,  the  admired  of  all  admirers.  Responsive  to  our 
desires,  she  swiftly  beautified  our  new  cities  and  towns; 
she  furnished  the  pioneer  of  the  plains  wood  for  his  fire; 
her  boughs  afforded  him  a  means  of  decoration;  her  shade 
gave  him  a  retreat  at  noontime  on  the  dreary  way ;  she  stood 
as  a  beacon  inviting  the  thirsty  traveler  to  refreshment  and 
rest;  'like  the  shadow  of  a  great  rock  in  a  weary  land,'  she 
was  the  refuge  of  man  and  beast.  How  proud  she  stands, 
while  looking  down  with  scorn  and  contempt  upon  the  ambi- 
tious tenderfoot  tree  that  has  been  wrecked  and  dismantled 
by  a  late  snow.  She  was  the  wise  and  faithful  friend  of 
the  pioneer,  and  the  Sons  of  Colorado  love  her. 

"And  now  let  us.  Sons  of  Colorado,  remembering  the 
environment  and  associations  of  our  state's  birth,  reaffirm 
our  allegiance  to  the  cause  of  liberty;  let  us  display  the 
national  emblem  on  the  state  birthday;  let  us  count  him  as 
an  enemy  to  be  shunned  who  seeks  to  deprive  us  of  our 
liberties  through  the  transgressions  of  the  wicked,  and  as 
we  pay  homage  to  the  Kohinoor  of  nations  let  us  pay  hom- 
age to  the  bright  particular  gem  in  the  diadem  of  states. 

"  'O,   make  Thou   us,   through   centuries   long, 
In  peace  secure,  in  justice  strong; 
Around  our  gifts  of  freedom  draw 
The  safeguards  of  Thy  righteous   law.'  " 


UNOFFICIAL   OPINIONS    AND   ACTIVITIES  101 

So  through  the  years  Robert  Steele,  as  he  found  oppor- 
tunity, worked  for  the  upbuilding  of  the  community  in 
which  he  lived,  for  the  maintenance  of  the  American  ideals 
of  citizenship,  for  patriotism  and  justice,  for  humanity  and 
civic  righteousness  among  men. 


CHAPTER  VII 

THE  RIGHT  OF  PERSONAL  LIBERTY 

"No  freeman  shall  be  taken  or  imprisoned  or  disseized  or  out- 
lawed or  banished  or  in  any  ways  destroyed,  nor  will  we  pass  upon 
him  nor  will  we  send  upon  him  unless  by  the  lawful  judgment  of 
his  peers  or  by  the  law  of  the  land." 

— The  Magna  Charta,  Section  32. 

"In  order  to  assert  our  rights,  acknowledge  our  duties,  and 
proclaim  the  principles  upon  which  our  government  is  founded,  we 
declare:     *     *     * 

"That  all  persons  shall  be  bailable  by  sufficient  sureties,  except 
for  capital  oflFenses,  when  the  proof  is  evident  or  the  presumption 
great ; 

"That  excessive  bail  shall  not  be  required,  nor  excessive  fines 
be  imposed,  nor  cruel  and  unusual  punishments  inflicted; 

"That  the  privilege  of  the  writ  of  habeas  corpus  shall  never 
be  suspended,  unless  when,  in  case  of  rebellion  or  invasion,  the 
public  safety  may  require  it; 

"That  the  military  shall  always  be  in  strict  subordination  to 
the  civil  power  j     *     *     * 

"The   trial    by   jury   shall    remain    inviolate    in   criminal    cases; 

*  *     * 

"That  the  people  have  the  right  peaceably  to  assemble  for  the 
common  good,  and  to  apply  to  those  invested  with  the  powers  of 
government  for  the  redress  of  grievances,  by  petition  or  remon- 
strance ; 

"That  no  person  shall  be  deprived  of  life,  liberty  or  property 
without  due  process  of  law." 

— Colorado  Constitution,  Bill  of  Rights. 

"When  we  deny  to  one,  however  wicked,  a  right  plainly  guar- 
anteed by  the  constitution,  we  take  that  same  right  from  everyone. 

*  *  *  We  cannot  change  the  constitution  to  meet  conditions.  We 
cannot  deny  liberty  today  and  grant  it  tomorrow ;  we  cannot  grant 
it  to  those  theretofore  above  suspicion  and  deny  it  to  those  suspected 
of  crime,  for  the  constitution  is  for  all  men,  'for  the  favorite  at 
court,  and  for  the  countryman  at  plow,"  at  all  times  and  under  all 
circumstances." 

— Justice  Robert  W.  Steele,  the  decision  in  the  Moyer  case. 

Humanity  builds  upon  the  failures  as  well  as  upon 
the  successes  of  former  years.     Each  generation  is  the  heir 


THE    RIGHT    OF    PERSONAL    LIBERTY  IO3 

of  its  predecessor,  and  human  progress  is  made  possible  by 
the  fact  that  a  great  volume  of  established  truth  and  mate- 
rial accomplishment  is  the  birthright  of  mankind.  This 
mass  becomes  the  foundation  and  the  instrument  and  to  a 
large  degree  the  material  of  further  progress.  For  each 
individual  to  test  by  his  own  intelligence  and  experience 
the  accumulated  store  of  human  knowledge  is  obviously 
impossible.  It  would  be  absurd  for  the  men  of  any  period 
to  refuse  to  accept  all  that  they  have  not  created  and  estab- 
lished and  proved  for  themselves.  Yet  if  every  belief  of 
general  acceptance  were  never  thereafter  to  be  questioned, 
if  every  theory  commonly  supposed  to  be  proven  were  placed 
beyond  the  reach  of  doubt,  the  world  would  be  bound  fast 
to  the  body  of  error  and  progress  would  become  impossible. 
The  exceptional  individual,  be  he  great  reformer  or  mere 
crank,  never  hesitates  to  question  any  belief  or  test  any 
truth,  however  well  established.  In  the  vast  majority  of 
political  experiments,  naturally,  the  consensus  of  human 
opinion  is  sustained,  the  conclusion  of  human  experience  is 
justified.  But  in  the  rare  exception  error  is  overthrown, 
ancient  truth  is  restored  or  new  wisdom  is  developed,  and 
humanity  rises  to  a  higher  level  because  a  single  man  dared 
to  hurl  defiance  in  the  face  of  a  scornful  and  hostile  world. 
The  highest  wisdom  of  statesmanship  often  consists  in 
knowing  what  to  maintain,  what  to  surrender,  and  what  to 
accept  from  among  the  continual  propositions  of  change. 

There  are  periods  when  the  spirit  of  reorganization 
seems  to  be  more  than  usually  prevalent.  The  foundations 
of  social  and  political  institutions  are  called  in  question. 
Truths  that  have  been  commonly  accepted  as  most  obvious 
are  assailed  with  doubts.  Startling  pronouncements  of  new 
truth  or  ancient  error  are  proclaimed  with  vehement  dog- 
matism. The  public  ear  is  assailed  on  one  side  by  the 
joyous  shouts  of  the  prophets  of  a  new  era  and  on  the  other 


104  ROBERT  WILBUR  STEELE 

by  the  lamentations  of  those  that  fear  that  the  principles  as 
well  as  the  institutions  of  law,  order,  justice  and  liberty  are 
being  swept  away.  Such  a  period  came  in  Colorado  in  the 
closing  years  of  the  nineteenth  and  the  early  years  of  the 
twentieth  century.  The  same  spirit  of  doubt,  unrest  and 
disturbance  was  generally  prevalent  throughout  the  nation, 
but  there  was  developed  out  of  the  peculiar  conditions  exist- 
ing in  Colorado  certain  special  features  that  impressed  them- 
selves with  dramatic  intensity  upon  the  public  attention. 
The  issues  here  presented  involved  the  most  fundamental 
principles  of  government.  Their  passionate  discussion 
reached  the  stage  of  civil  war.  Their  ultimate  settlement 
gave  a  broad  and  solid  basis  for  future  development  and 
constituted  a  very  important  step  in  political  progress. 

Two  forces  were  strongly  at  work  in  those  years,  either 
of  which  threatened  the  destruction  of  American  institutions. 
One  of  these  forces,  and  the  lesser  in  its  danger  to  the  state, 
was  that  of  lawlessness  and  anarchy  as  manifested  in  the 
Cripple  Creek  strike  of  1894,  the  Leadville  strike  and  riot 
of  the  same  year,  the  disturbances  and  riot  at  Telluride  in 
1900,  and  the  Cripple  Creek  war  of  1903.  However  alarm- 
ing the  threat  of  these  disorders  may  have  appeared,  they 
never  at  any  time  held  the  possibility  of  lasting  or  perma- 
nent injury  to  the  structure  of  free  institutions.  Riot, 
anarchy,  violence  and  murder,  theft  and  the  destruction  of 
property,  are  criminal  acts  that  ought  to  receive  punishment. 
They  are  hostile  to  the  principle  of  government.  They  tend 
toward  the  destruction  of  the  social  organization.  But  these 
crimes  could  never  become  the  structure  of  government. 
They  were  local  and  temporary  disorders,  and,  whatever  of 
injustice  or  of  cruelty  they  involved  in  individual  cases, 
there  was  never  the  least  danger  that  they  would  come  to  be 
the  regular  and  established  order  of  things.  Anarchy  is  not 
government;  it  is  the  absence  of  government. 


THE    RIGHT    OF    PERSONAL    LIBERTY  IO5 

The  threat  that  came  from  another  source  was  quite 
different.  Events  and  conditions  had  tended  to  make  the 
structure  of  one  of  the  two  great  political  parties  of  the 
state  for  a  short  time  almost  the  personal  property  of  a 
single  man.  They  had  developed  in  Denver  and  in  some 
other  counties  a  bi-partisan  machine  quite  independent  of 
political  principles.  They  had  made  it  possible  for  a  time 
to  defy  the  will  of  the  majority  of  the  party  in  the  nomina- 
tion of  candidates  and  the  will  of  the  majority  of  the  people 
in  matters  of  legislation.  These  things  constituted  a  usurp- 
ation rather  than  a  destruction  of  government.  The  logical 
consequence  of  a  control  of  the  party  through  machine  poli- 
tics was  a  domination  of  the  state  through  machine  govern- 
ment. A  permanent  establishment  of  machine  government 
would  be  oligarchy  and  not  democracy.  Such  a  change 
would  involve  a  transformation  of  the  principles  as  well  as 
the  structure  of  the  American  republic.  It  would  be  a  viola- 
tion in  fact  and  in  theory  of  the  central  principle  of  Ameri- 
canism, the  rule  of  the  people  by  the  free  will  of  the 
majority.  It  would  be  a  new  form  of  government,  the 
permanent  establishment  of  something  else  in  place  of  the 
American  republic  that  was  founded  by  the  makers  of  the 
constitution. 

It  is  not  necessary  to  consider,  as  some  have  done,  that 
individual  men  were  moved  by  a  deliberate  purpose  to  the 
overthrow  of  democratic  institutions  and  to  the  establish- 
ment of  an  altered  system  of  government  for  the  oppression 
of  their  fellow  men.  The  primary  cause  and  condition  was 
that  the  spirit  of  change  was  strong  in  the  minds  of  men, 
that  old  forms  had  become  outworn,  that  abuses  had 
grown  intolerable,  that  two  principles  of  government  were 
struggling  for  the  mastery.  To  honest  men  of  one  way  of 
thinking  it  seemed  that  additional  means  of  defense  must 
be  provided  in  order  to  save  society  and  government  from 


106  ROBERT    WILBUR    STEELE 

the  attacks  of  rioters,  incendiaries,  plunderers,  demagogues 
and  visionaries.  Other  men,  equally  honest,  had  the  clearer 
vision  that  the  permanent  safety  of  the  republic  could  only 
be  secured  by  keeping  the  field  of  public  activities  forever 
free  from  those  barriers  of  class  and  privilege  that  had  been 
destroyed  at  a  cost  of  tremendous  effort  and  suffering  in 
ancient  years  and  by  maintaining  every  safeguard  of  the 
people's  rights  and  liberties  that  had  been  written  into  the 
constitutions  of  the  nation  and  the  state.  One  class  wished 
to  make  permanent  the  conditions  of  machine  politics ;  the 
other  to  overthrow  evil  practices  and  to  restore  the  full 
measure  of  popular  self-government. 

While  the  active  forces  of  machine  politics  and  gang 
government  were  striving  with  apparent  success  to  make 
permanent  their  control  of  public  power,  the  will  of  the 
people  was  inclining  more  and  more  toward  a  radical  reform 
of  the  crying  evils  of  politics.  The  use  of  public  power 
for  personal  and  partisan  advantage  against  the  people's 
will  and  interest,  the  persistent  refusal  to  enact  legislation 
continually  promised  in  party  platforms,  the  nomination  of 
candidates  in  flagrant  violation  of  the  popular  preference, 
the  use  of  party  names  and  party  principles  as  mere  catch- 
words in  the  game  of  machine  politics,  had  at  first  disgusted 
the  people  and  later  roused  them  to  an  earnest  purpose. 

Had  there  been  enlisted  on  the  side  of  machine  govern- 
ment only  the  machine  bosses  and  their  subordinates, 
together  with  those  persons  having  a  selfish  interest  in 
securing  special  favors  or  exemptions  from  a  government 
which  they  in  some  way  controlled,  the  attack  upon  Ameri- 
can institutions  from  this  side  would  have  been  scarcely 
more  dangerous  than  was  that  of  the  socialistic  visionaries, 
the  demagogues  and  the  rioters.  The  masses  of  American 
citizenship,  conservative,  intensely  patriotic,  devoted  to  law 
and  order,  were  easily  shocked  by  the  vision  of  anarchy 


THE    RIGHT    OF    PERSONAL    LIBERTY  IO7 

revealed  in  the  disorders  at  Cripple  Creek,  Leadville  and 
Telluride.  In  approving  extra-constitutional  measures  to 
defend  the  state  against  the  flagrant  assault  of  men  that 
openly  professed  an  exultant  disregard  of  the  rights  of 
property  and  person,  too  many  sober-minded  citizens  over- 
looked the  fact  that  they  were  yielding  their  own  constitu- 
tional rights  and  liberties  to  usurpers  who  were  taking 
advantage  of  every  opportunity  to  strengthen  their  hold 
upon  the  public  power. 

Whether  unscrupulous  politicians  and  others  conspired 
to  promote  disorder  and  sedition,  from  which  they  hoped 
to  profit,  is  a  minor  point.  The  important  thing  is  that 
the  lawlessness  and  crimes  attending  the  strikes  in  the 
mining  districts  were  used  in  the  effort  to  fix  more  firmly 
upon  the  people  the  bonds  of  machine  government.  If,  on 
the  other  side,  men  without  any  participation  in  criminality 
or  sympathy  with  lawlessness  were  led  into  a  defense  of 
lawbreakers,  or  into  a  violent  resistance  of  those  who  were 
misusing  their  rights  of  property  or  their  possessions  of 
public  power,  that  was  only  a  natural  incident  of  this 
troublous  time. 

The  culmination  of  the  struggle  between  these  forces 
of  change  was  reached  in  the  ten-year  period  from  1900  to 
1910.  During  that  time  Robert  W.  Steele  was  a  justice  of 
the  Supreme  Court  of  Colorado,  and  it  was  while  he  held 
that  high  position  that  four  cases  were  presented  to  the 
court  which  involved  the  most  fundamental  and  elementary 
principles  of  personal  liberty  and  of  the  American  system 
of  free  government.  It  is  a  matter  of  history  rather  than 
of  political  opinion  that  the  Supreme  Court  of  the  state 
was  packed  by  political  machine  methods  in  order  to  secure 
decisions  favorable  to  certain  interests.  There  has  been 
argument  as  to  whether  this  procedure  was  justifiable  under 
all  the  circumstances,  but  no  serious  denial  of  the  fact.     In 


108  ROBERT    WILBUR    STEELE 

his  opinions  in  these  cases,  Justice  Steele  was  in  the  minor- 
ity, not  because  there  were  no  honest  judges  among  those 
that  held  a  contrary  opinion,  but  because  the  practices  of 
machine  politics  had  resulted  in  the  appointment  or  election 
of  a  majority  of  judges  who  were  known  to  favor  political 
principles  and  methods  to  which  Justice  Steele  was  opposed 
and  which  were  inconsistent  with  American  free  government 
by  the  will  of  the  people. 

Robert  Steele  came  to  the  Supreme  Court  direct  from 
his  work  among  the  boys  and  girls,  the  widows  and  orphans, 
the  insane,  the  unhappily  married  and  others  that  had  bene- 
fited by  his  care  and  interest  in  the  County  Court.  As  was 
his  invariable  custom,  he  made  no  active  effort  to  secure  the 
nomination.  Under  the  political  conditions  then  existing, 
a  fusion  ticket  was  necessary.  The  place  of  Supreme  judge 
was  allotted  to  the  Silver  Republicans,  and  the  name  of 
Robert  W.  Steele  was  presented  to  the  convention  by  his 
friends  of  that  party.  He  was  nominated  by  acclamation, 
and  in  the  following  November  was  elected  by  a  large 
majority.  His  election  was  generally  conceded  from  the 
day  of  his  nomination.  His  opponent  on  the  regular  Repub- 
lican ticket  was  G.  C.  Battels,  also  a  Denver  boy  and  a  man 
of  the  highest  standing  as  to  character  and  ability.  Between 
him  and  Judge  Steele  from  early  years  a  warm  and  close 
friendship  had  existed,  and  either  of  the  candidates  would 
have  been  glad  on  personal  grounds  to  see  victory  incline 
to  his  opponent.  Under  the  political  conditions  of  that  year, 
however,  Mr.  Bartels  accepted  the  nomination  mainly  as  a 
matter  of  form  and  made  no  active  canvass. 

Commenting  upon  Judge  Steele's  nomination,  the 
Rocky  Mountain  News  of  September  14,  1900,  said: 

"Judge  Robert  W.  Steele,  candidate  for  supreme  judge,  is  at 
present  county  judge  of  Arapahoe  County,  an  office  which  he  has 
filled  to  the  satisfaction  of  the  bar  and  the  public.  As  county  judge 
he   has  charge   of   all    estates,    and   his   record   is   absolutely   clean. 


THE    RIGHT    OF    PERSONAL    LIBERTY  IO9 

Of  Studious  temperament  and  judicial  mind,  Mr.  Steele  has  grown 
in  every  direction  since  his  elevation  to  the  bench,  and  in  the  highest 
court  of  the  state  will  bring  ability,  discernment  and  painstaking 
labor  to  the  determination  of  every  case." 

The  measure  of  Judge  Steele's  popularity  at  this  time 
is  well  evidenced  by  the  following  comment  from  George  s 
Weekly,  a  Denver  newspaper,  of  January  12,  1901  : 

"We  believe  that  Bob  Steele  is  going  to  make  one  of  the  best 
judges  that  ever  sat  upon  the  Supreme  bench.  It  is  a  fact  pretty 
generally  conceded  that  Bob  is  going  to  do  right  as  far  as  he  knows 
how,  and  we  don't  care  if  such  men  occasionally  make  mistakes. 
The  mistakes  we  object  to,  and  the  class  of  judges  we  don't  like, 
are  the  judges  who  sit  upon  the  bench  and  make  decisions  because 
they  are  paid  to  make  them,  or  because  their  own  personal  interests 
demand  them  to  make  unjust  decisions.  We  don't  believe  that  Judge 
Steele  will  ever  hand  down  a  decision  that  does  not  agree  with  his 
conscience,  and  we  look  forward  to  a  season  of  justice  from  this 
source  that  will  be  gratifying.  Bob  has  a  host  of  friends  among  the 
young  men  of  this  state,  and  they  all  wish  him  well,  and  if  he 
discharges' his  duty  as  they  all  think  he  will,  there  are  higher  honors 
in  store  for  him.  The  state  of  Colorado  is  looking  for  young  men 
of  his  class.    They  are  needed." 

Robert  Steele  did  not  go  into  the  Supreme  Court  as  a 
political  partisan,  nor  as  the  representative  of  any  class 
among  the  people  of  the  state.  He  went  there  as  the  repre- 
sentative of  the  people  among  whom  he  had  grown  to  man- 
hood, whom  he  knew  and  by  whom  he  was  known.  He 
was  elected  by  citizens  who  had  implicit  confidence  in  his 
integrity  and  his  patriotism.  He  accepted  his  nomination 
and  election  modestly,  distrusting  his  own  ability  and  merit, 
doubtful  of  his  own  worthiness  for  the  honor  that  had  been 
conferred  upon  him,  but  fully  determined  to  do  everything 
in  his  power  to  maintain  the  high  regard  of  his  fellow 
citizens,  and,  above  all,  to  hold  fast  to  his  own  clear  ideals 
of  civic  loyalty  and  righteousness. 

Clear  of  partisan  entanglements,  free  of  class  preju- 
dice, fresh  from  the  people,  and  without  even  that  profes- 
sionally judicial  bias  that  comes  from  long  association  with 


110  ROBERT  WILBUR  STEELE 

the  upper  courts  of  law,  with  unspotted  integrity,  with 
intense  patriotism  and  with  broad  and  impartial  humanity, 
Justice  Steele  entered  upon  the  duties  of  the  high  position 
to  which  destiny  and  the  voice  of  the  people  had  called  him. 
But  he  had  even  more  than  those  qualihcations  for  his  task. 
He  had  a  judicial  mind,  unimpassioned  and  impartial.  He 
entertained  no  prejudices.  Rich  or  poor,  proud  or  humble, 
powerful  or  weak,  all  men  stood  upon  an  equal  footing 
when  they  came  before  him,  and  he  judged  them  according 
to  the  three  great  principles  of  eternal  justice:  law  and 
equity  and  mercy.  He  never  usurped  powers  to  which  he 
was  not  fully  entitled,  but  he  used  the  authority  and  the 
discretion  that  the  laws  wisely  allow  to  the  judge,  according 
to  the  spirit  of  the  law,  for  justice  and  humanity. 

Above  all,  he  had  that  instinctive  perception  of  right, 
that  intuitive  apprehension  of  equity,  that  immediate  grasp 
of  the  fundamental  principles  involved  in  any  matter  pre- 
sented to  him,  which  constitute,  in  the  highest  degree,  the 
proper  qualification  for  the  judge  of  a  court  of  last  resort. 

Having  reached  his  conclusion  according  to  the  best 
measure  of  his  intellect  and  conscience,  he  never  hesitated 
to  maintain  it  against  whatever  opposition  it  might  encoun- 
ter. He  was  always  ready  to  consider  the  opinions  of  other 
men.  He  often  sought  counsel.  But,  when  his  mind  was 
made  up,  he  stood  for  what  he  believed  to  be  right,  regard- 
less of  all  save  his  clear  sense  of  duty  to  the  people  and  of 
responsibility  in  the  high  office  he  held. 

Of  all  the  cases  that  came  before  him  in  the  Supreme 
Court,  the  Moyer  habeas  corpus  case  was  the  most  impor- 
tant, both  as  regards  the  fundamental  constitutional  prin- 
ciples involved  and  as  regards  its  bearing  upon  the  problems 
foremost  in  the  public  mind  during  this  period.  The  Moyer 
case  immediately  concerned  the  security  of  an  individual 
from   arrest   and  imprisonment  by  the   arbitrary  act  of  a 


THE    RIGHT    OF    PERSONAL    LIBERTY  111 

military  authority.  The  circumstances  of  that  act  seemed 
to  justify  it  to  many  minds  as  a  necessary  measure  of  the 
enforcement  of  public  authority,  and  of  protection  for  the 
public  safety.  Justice  Steele's  faultless  logic  reached 
through  the  entanglement  of  local  conditions  and  temporary 
disorder,  and  recognized  in  the  overthrow  of  the  constitu- 
tional safeguards  of  the  bill  of  rights  the  abandonment 
of  the  innermost  citadel  of  liberty,  the  relinquishment  of 
one  of  the  greatest  prizes  of  the  long  struggle  for  popular 
self-government,  the  surrender  of  a  weapon  with  which  the 
minority  might,  at  another  time  and  under  other  conditions, 
effectuate  its  overthrow  of  the  American  republic  and  estab- 
lish an  oligarchy  by  military  power. 

The  dissenting  opinion  of  Justice  Steele  in  the  Moyer 
case  will  be  found  printed  in  full  as  the  next  chapter  of 
this  book.  It  is  so  comprehensive  in  its  statement  of  facts, 
of  principles  and  of  authorities  that  no  additional  word 
remains  to  be  said  upon  those  matters.  The  most  favorable 
comment  that  can  be  made  upon  the  majority  decision  is 
that  it  ignored  the  constitution  and  misrepresented  the 
authorities  in  order  to  serve  a  fancied  passing  need  of 
public  safety.  The  least  that  can  be  said  of  Justice  Steele's 
opinion  is  that  it  is  a  clear,  complete  and  unanswerable 
argument  in  defense  of  a  principle  that  runs  back  to  the 
beginning  of  a  constitutional  bulwark  for  personal  liberty. 
It  is,  moreover,  a  terrific  arraignment  of  the  forces  then 
operating  toward  the  destruction  of  the  basic  principles  of 
American  government,  and  a  revelation  to  the  people  of  the 
dangerous  situation  in  which  they  were  at  that  time. 

Justice  Steele's  opinion  found  an  immediate  response 
throughout  the  state  and  the  nation.  No  other  expression  of 
a  Colorado  court  was  ever  so  widely  heralded  or  commented 
upon,  and  few  decisions  of  any  court  have  been  more  gen- 
erally repeated  and  approved.     Its  central  declaration,  that 


112  ROBERT  WILBUR  STEELE 

the  citizen  is  safeguarded  by  constitutional  provision  against 
arbitrary  imprisonment  by  the  military  power,  with  its 
attendant  declarations  that  the  military  must  always  be 
subordinate  to  the  civil  power,  and  that  the  legislature  and 
not  the  executive  has  the  authority  to  declare  the  existence 
of  insurrection,  were  everywhere  recognized  as  fundamental 
to  personal  liberty  and  as  essential  to  the  maintenance  of 
the  republic.  Too  many  states  were  engaged  in  struggles 
similar  to  that  of  Colorado  to  make  it  possible  for  the  voice 
of  approval  to  be  universal. 

From  among  the  many  newspaper  comments  upon  the 
opinion  it  is  possible  to  select  only  a  few,  choosing  those 
of  special  significance. 

From  the  Detroit  (Mich.)  Free  Press: 

In  the  turmoil  and  strife  that  has  tended  Colorado  for  many 
weary  months,  the  opinion  of  Judge  Steele  shines  through  the  smoke 
and  carnage  like  a  ray  of  hope.  He  has  refused  to  be  blinded  to 
the  purposes  for  which  the  constitutional  safeguards  of  liberty  and 
independence  were  made,  and,  despite  the  distracting  influences,  he 
has  kept  in  mind  the  spirit  of  our  institutions  and  the  necessity  for 
the  fullest  measure  of  liberty  consistent  with  the  maintenance  of 
government.  *  »  *  Despite  the  appalling  conditions,  there  has 
never  been  any  proof  that  it  was  necessary  either  to  suspend  the 
writ  of  habeas  corpus  or  to  declare  martial  law.  The  protection  of 
the  militia  could  have  been  afforded,  peace  and  order  maintained, 
riots  quelled  and  good  citizenship  vindicated  without  resort  to  any 
of  the  methods  that  have  aroused  general  indignation  and  have  been 
such  a  despotic  abuse  of  power  as  has  never  been  equaled  in  free 
America.  The  strikers,  even  in  the  affected  districts,  have  always 
been  in  the  minority.  To  deprive  other  citizens  of  the  protection  of 
the  law,  to  override  the  civil  authorities  and  to  utilize  such  drastic 
measures  as  deportation  has  been  tyrannical,  and  as  a  precedent 
under  judicial  interpretation  a  misuse  of  power  that  is  alarming. 
The  decision  of  the  Colorado  Supreme  Court  would  not  be  regarded 
as  good  law  in  any  other  state  of  the  Union.  Judge  Steele's  dissent- 
ing opinion,  on  the  other  hand,  stands  as  a  clear  and  reasonable 
interpretation  in  accord  with  the  spirit  of  our  institutions  and 
reassuring  that  Colorado  has  yet  within  its  borders  one  man  wholly 
sane  and  cool-headed. 

From  the  Pittsburgh  (Fa.)  Dispatch: 

It  is  regrettable  that  the  opinion  of  Justice  Steele  becomes  only 
a  part  of  the  record  in  the  Moyer  habeas  corpus  case,  while  a  decree 


THE    RIGHT    OF    PERSONAL    LIBERTY  II3 

was  based  upon  the  decision  of  his  two  colleagues.  *  *  *  What 
American  can  quarrel  with  the  postulate  that  Moyer,  of  whatever 
crime  guilty,  demands  specified  charge  and  due  trial?  Even  now 
he  rests  in  some  jail  without  further  reason  than  that  a  governor 
in  exercising  military  power  has  abdicated  civil,  a  subordination  of 
one  to  the  other,  the  reverse  of  that  which  he  took  an  oath  to  uphold. 
Sowing  of  dragon's  teeth  the  whole  miserable  Colorado  story  has 
been.  Foreign  journals  are  commenting  upon  it  with  amazement 
and  lack  of  comprehension,  and  in  this  bewilderment  they  do  not 
differ  from  citizens  in  America. 

From  the  Cleveland  (Ohio)  Leader: 

Although  he  was  the  only  justice  to  dissent  from  the  recent 
decision  of  the  Colorado  Supreme  Court  sustaining  the  governor  in 
the  exercise  of  arbitrary  power,  Justice  Robert  W.  Steele  is  undoubt- 
edly right.  Surely  his  dissenting  opinion,  which  has  just  been  pub- 
lished, after  nearly  a  month  of  careful  consideration,  will  meet  with 
the  approval  of  all  fair-minded  and  liberty-loving  people. 

From  the  Duluth  (Minn.)  Herald: 

Justice  Steele  of  the  Colorado  Supreme  Court  stands  alone 
among  the  judges  in  his  opposition  to  the  arbitrary  and  unconstitu- 
tional acts  of  Governor  Peabody.  But  one  man  with  God  on  his 
side  is  in  the  majority,  and  it  will  be  demonstrated  in  the  final 
show-down  that  Judge  Steele  is  with  a  majority  of  the  people  of 
Colorado  and  of  the  United  States. 

From  the  New  York  Evening  Post: 

Justice  Steele's  opinion  emphasizes  an  open  question  which 
stands  much  in  need  of  settlement,  namely,  the  powers  of  the  courts 
during  temporary  military  control  of  a  district.  The  decision  of  the 
Colorado  Supreme  Court  seems  merely  to  have  evaded  the  problem. 

From  the  Denver  (Colo.)  Rocky  Mountain  News: 

The  document  will  meet  with  the  approval  of  nine  out  of  ten 
of  the  bar  of  Colorado  and  will  rank  with  the  opinions  of  the  most 
learned  judges  of  England  and  America  in  cases  involving  the 
great  constitutional  issues  of  personal  liberty. 

The  general  publication  of  Justice  Steele's  opinion  in 
the  newspapers  brought  to  him  a  host  of  letters,  some  from 
old  friends,  many  from  lawyers  in  Colorado  and  elsewhere, 
and  a  large  number  from  total  strangers  who  had  no  other 
purpose  than  to  express  their  approval  of  a  decision  that 
was  primarily  a  defense  of  human  liberty,  and  of  a  judge 


114  ROBERT    WILBUR    STEELE 

that  had  clearly  seen  the  right  and  bravely  dared  to  main- 
tain it.    Only  a  few  of  these  may  be  quoted  here  to  indicate 
how  the  decision  was  regarded  by  the  men  of  that  time. 
From  an  old  friend : 

My  Dear  Bob — I  have  just  finished  reading  your  opinion  in  the 
Moyer  case.  Have  read  it  all  very  carefully — some  paragraphs 
several  times.  I  was  fully  prepared  to  be  interested,  but  I  have 
been  more  than  interested — very  much  impressed.  1  am  a  little 
afraid  that  I  have  shared  in  a  more  or  less  common  Denver  feeling 
that  Moyer  is  a  dangerous  man  and  that  it  was  excusable  to  stretch 
the  law  a  bit  to  hold  him.  I  am  also  somewhat  prejudiced  against 
union  men. 

But  I  have  a  wholesome  respect  for  what  is  right,  too,  even  for 
those  who  do  not  deserve  any  favors,  and  I  must  say  that  your 
presentation  of  the  right  and  wrong  of  this  situation  is  simply 
unanswerable.  It  reminds  me  of  what  I  said  this  afternoon,  viz.: 
That  you  see  the  right  more  clearly  than  other  people  do,  and  you 
have  the  courage  to  express  your  views  without  dodging. 

I  cannot  doubt  that  both  the  governor  and  the  other  justices 
knew  from  the  first  that  the  habeas  corpus  privilege  could  not  be 
suspended.  But  they  did  not  want  to  face  that  view  of  the  situation, 
and  they  will  not  face  it  now.  But  it  was  there — fairly  and  squarely 
— even  though  they  shut  their  eyes  to  it. 

I  am  sure  your  decision  is  the  only  law  that  will  stand  the 
approval  of  time,  and  the  only  one  that  will  live.  I  think  you  will 
be  proud  of  it  as  long  as  you  live,  and  your  children  and  grand- 
children will  be  proud  of  it. 

It  takes  a  clear  head  and  a  sound  conscience  and  a  courageous 
heart  to  take  a  stand  like  that  in  such  a  time,  but  it  was  right,  and 
it  will  grow,  and  the  more  I  think  of  it  the  prouder  I  am  that  you 
did  it.     It  is  the  event  of  your  lifetime  up  to  date. 

From  a  Denver  lawyer  : 

My  Dear  Judge — Dissenting  opinions,  though  not  immediately 
controlling,  sometimes  work  both  through  unseen  and  practical 
influences  toward  the  accomplishment  of  great  results.  In  questions 
of  great  public  moment,  affecting  life  or  liberty,  judicial  decisions 
inspire  the  keenest  interest  and  vigorous  protests  against  palpable 
fallacies  sink  deep  into  the  public  conscience,  where,  taking  root, 
they  spring  ultimately  into  life  and  vigor.  We  have  had  instances 
of  this  sort  in  the  past  and  will  have  them  in  the  future.  It  was 
the  dissenting  opinion  in  the  Dred  Scott  case  which  gave  hope  to 
the  nation  and  from  which  ultimate  deliverance  came.  And  so  in 
time  to  come  the  Moyer  case  will  be  known,  not  by  what  the  court 
decided,  but  by  the  magnificent  protest  you  have  registered  in  the 
cause  of  right  and  justice.  I  feel  that  you  have  spoken  for  us  all, 
that  you  have  shown  some  of  the  depths  of  the  abyss  into  which  the 


THE    RIGHT    OF    PERSONAL    LIBERTY  II5 

majority  opinion  is  haling  us.  And  I  know  that  those  who  read  and 
ponder  upon  it  must  be  convinced.  May  you  live  long  to  adorn  the 
place  you  so  nobly  fill,  is  the  earnest  prayer  of 

Your  Friend. 

From  another  lawyer : 

My  Dear  Judge — I  have  just  finished  reading  your  dissenting 
opinion  in  the  Moyer  case,  and  wish  to  congratulate  you  upon  its 
convincing  presentation  of  the  law.  I  feel  that  the  people  of  the 
entire  state  are  to  be  congratulated  in  having  at  least  one  member 
of  our  Supreme  Court  who  fearlessly  makes  a  stand  in  defense  of 
those  personal  liberties  of  our  citizens  for  which  our  republican 
form  of  government  was  founded  and  preserved. 

I  cannot  but  feel  that  your  opinion  will  live  as  a  landmark  in 
judicial  decisions  when  the  majority  opinion  of  the  court  has  been 
either  forgotten  or  mentioned  as  a  mere  by-word. 

You  have  handed  down  what  I  consider  one  of  the  greatest 
opinions  ever  delivered  by  our  Supreme  Court  and  upon  a  question 
that  the  majority  opinion  has  not  settled  to  the  contrary  and  which 
never  will  be  settled  until  settled  right. 

The  people  of  this  state  will  surely  never  set  their  seal  of 
approval  upon  the  doctrine  of  absolutism  and  despotism  announced 
in  the  majority  opinion,  but  I  am  firmly  convinced  they  will  sustain 
and  support  the  principles  so  clearly  and  logically  enunciated  in 
your  splendid  opinion.  Sincerely  yours, 

From  a  Denver  business  man  : 

My  Dear  Judge — I  know  as  well  as  you  do  that  righteous  and 
just  actions  always  return  their  full  measure  of  reward  to  the  actor. 
Therefore,  I  know  that,  in  your  judgment  in  the  Moyer  case,  you 
did  complete  justice  to  yourself  and  your  country,  and  therefore  need 
no  praise  of  ours.  Still,  we  cannot  suppress  our  desire  to  thank  you, 
as  sincerely  as  words  can  be  made,  to  express  our  gratitude  to  you 
for  the  good  faith  to  your  constituency,  and  the  appreciation  of 
justice  and  equity  and  the  foundation  principles  upon  which  our 
government  must  survive,  if  at  all,  displayed  in  that  decision. 

Trusting  that  every  blessing  that  can  follow  such  righteous 
action  will  come  to  you,  as  ever, 

From  a  former  Denver  resident : 

Portland,  Ore.,  July  2,  1904. 
My  Dear  Judge — Will  you  permit  a  good  friend,  well  wisher 
and  admirer,  even  though  he  has  left  Colorado,  to  extend  his  con- 
gratulations to  you  on  the  extremely  courageous,  clear  and  able 
opinion  which  you  rendered  yesterday  in  the  Moyer  case?  It  will 
do  more  for  Colorado  than  the  building  of  the  Moffat  Road,  for  it 
strikes  down  deep  into  the  fundamentals;  and,  coming  from  a  judge 
of  a  court  of  last  resort,  even  though  it  be  a  minority  opinion,  it 
shows  a  perception  of  safe,  sane  and  constitutional  methods  that  is 


Il6  ROBERT    WILBUR    STEELE 

peculiarly  refreshing  and  hopeful  at  a  time  when  so  many  people 
seem  hopelessly  adrift  from  their  moorings. 
Yours  very  truly, 

An  opinion  from  St.  Louis  : 

St.  Louis,  July  6,  1904. 

Dear  Sir — I  have  just  read  your  dissenting  opinion  in  fhe  Moyer 
case  and  take  this  opportunity  to  say  that,  in  my  opinion,  it  is  an 
unanswerable  exposition  of  what  the  law  in  our  state  was,  and  what 
it  should  be. 

I  regard  the  decision  of  the  majority  as  a  calamity,  and  cannot 
believe  that  it  was  well  considered  in  all  of  its  bearings  upon  the 
future.  I  am  highly  gratified  that  your  dissenting  opinion  is  so  full 
that  it,  for  all  time,  shows  the  law  as  the  forefathers  settled  it  and 
makes  any  further  citation  of  authority  unnecessary. 
Sincerely  yours. 

From  a  prominent  citizen  of  Kansas : 

Versailles,  Mo.,  July  2,  1904. 
My  Dear  Sir — As  an  American  citizen  who  loves  justice  and 
liberty,  I  desire  to  thank  you  for  your  unanswerable  dissenting 
opinion  in  the  Moyer  case.  I  am  not  a  miner,  nor  am  I  a  member 
of  any  labor  organization,  but  I  have  no  hesitancy  in  saying  that, 
in  my  judgment — and  I  think  it  is  the  opinion  of  a  large  majority 
of  the  fair-minded  people  of  this  country — the  action  of  Governor 
Peabody  is  the  most  infamous  and  outrageous  assault  upon  the 
constitution  and  liberties  of  the  people  ever  perpetrated  by  any 
official  in  the  United  States.  The  management  of  the  labor  troubles 
in  Colorado  by  the  governor  has  made  more  anarchists  during  the 
past  six  months  than  have  come  to  this  country  from  foreign  lands 
during  the  past  ten  years.  Very  truly  yours. 

From  a  lawyer  of  Fort  Wayne,  Indiana : 

I  read  last  night  with  great  pleasure  the  opinion  of  Justice 
Robert  W.  Steele  on  the  suspension  of  the  writ  of  habeas  corpus  by 
Governor  Peabody,  and  it  is  one  of  the  ablest  and  most  eloquent 
dissenting  opinions  I  have  ever  read  and  the  conclusion  reached  by 
the  learned  judge  meets  my  hearty  approval.  I  note  with  some 
pride  that  our  Supreme  Court  in  two  cases  in  1863  and  1864  fully 
supports  Judge  Steele.  In  years  to  come  this  opinion  by  Judge 
Steele  will  be  the  law  of  Colorado  also,  and  if  you  and  I  live  a 
reasonable  time  we  will  see  this  opinion  cited  as  one  of  the  strong- 
est on  the  suspension  of  the  writ  of  habeas  corpus,  and  will  prevent 
oppression  by  unscrupulous  or  designing  enemies  of  our  government. 

A  letter  from  Brooklyn,  N.  Y. : 

My  Dear  Sir — Accept  congratulations  upon  your  dissenting 
opinion  rendered  in  reference  to  refusing  a  writ  of  habeas  corpus 


THE    RIGHT    OF    PERSONAL    LIBERTY  11 7 

to  Charles  H.  Moyer,  president  of  the  Federation  of  Miners,  who 
was  detained  and  held  as  a  military  prisoner  by  order  of  the  gover- 
nor of  your  commonwealth.  Permit  me  to  state  that  I  am  in  no  way 
interested  in  the  matter,  save  from  a  legal  and  constitutional  inter- 
pretation of  the  law.  VVe  had  a  discussion  at  my  office  very  recently 
relative  to  dissenting  opinions.  The  majority  of  the  attorneys  were 
in  favor  of  having  no  dissenting  opinions  written  or  made  public, 
they  being  of  the  opinion  that  the  majority  should  determine  and 
rule  the  decision,  and  that  the  public  should  not  be  made  aware  of 
any  dissent  in  the  final  ruling  of  the  highest  courts  of  record  of  the 
state. 

Your  action  and  opinion  so  recently  rendered  bears  me  out  in 
my  argument,  and  upholds  the  position  which  I  took  in  the  recent 
interview,  and  I  lost  no  time  in  presenting  your  opinion  in  justifica- 
tion of  my  argument. 

I  would  further  state  that  I  fully  believe  that  your  opinion 
would  be  upheld  and  sustained  by  the  United  States  Supreme  Court. 

Again  congratulating  you  upon  your  wisdom,  keen  judgment 
and  legal  decision,  I  remain  with  respect, 

Yours  very  sincerely. 

Possibly  the  most  notable  tribute  to  the  strength  and 
convincing  logic  of  the  minority  opinion  was  that  of  Chief 
Justice  Gabbert,  who  delivered  the  original  opinion  of  the 
court,  and  who  considered  it  advisable,  after  the  minority 
opinion  had  been  presented,  to  tile  an  extraordinary  and 
supplementary  opinion,  in  which  he  practically  admits  the 
overwhelming  proof  of  Justice  Steele's  main  points,  but 
maintains  the  amazing  and  monstrous  doctrine  that,  though 
the  governor  may  not  have  the  power  to  declare  martial 
law  or  to  suspend  the  privilege  of  the  writ  of  habeas  corpus, 
he  and  his  military  subordinates  have  the  right  to  do  any- 
thiiig  they  may  please  to  do  for  the  alleged  purpose  of 
suppressing  insurrection,  and  the  judicial  department  has 
no  right  to  call  them  to  account  for  their  actions. 

"It  is  not  held,"  said  the  chief  justice  in  his  supplementar}^ 
opinion,  "that  the  governor  has  the  power  to  suspend  the  writ  of 
habeas  corpus  or  declare  martial  law.  No  opinion  is  expressed  on 
either  of  these  propositions,  and  hence  all  that  is  said  in  the  dissent- 
ing opinion  on  these  subjects  and  the  voluminous  excerpts  are 
foreign  to  the  questions  involved.  It  is  determined  that  the  peti- 
tioner was  not  entitled  to  his  discharge,  not  because  the  privilege  of 
the   writ   of   habeas   corpus   was   suspended,   or   the   governor   had 


1  l8  ROBERT    WILBUR    STEELE 


declared  martial  law,  but  for  the  reason  that  the  governor,  through 
his  subordinate  officers,  was  exercising  a  power  conferred  upon  him 
by  the  fundamental  law  of  the  state.  *  *  *  This  power  and  the 
conditions  under  which  it  may  be  exercised  is,  by  the  fundamental 
law  of  the  state,  vested  in  the  governor  and  in  him  alone.  If  the 
judicial  department  should  undertake  to  review  the  facts  upon 
which  the  governor  acted,  it  would  be  a  direct  interference  with  his 
authority  and  an  assumption  of  power  on  the  part  of  the  judiciary 
which  does  not  exist.  *  *  *  The  constitution  has  clothed  the 
governor  with  the  power  to  take  the  steps  he  did,  and  he  cannot  be 
called  to  account  by  the  judicial  department  for  this  action,  nor  can 
the  latter  inquire  into  or  determine  whether  or  not  the  conditions 
existed  upon  which  he  based  his  action.  That  is  a  matter  which, 
in  the  circumstances  of  the  case,  the  chief  executive  must  determine 
for  himself,  and  his  subordinates,  acting  in  obedience  to  his  orders, 
must  determine  for  themselves,  and  when  so  determined,  is  con- 
clusive." 


CHAPTER  VIII 

THE  OPINION  IN  THE  MOYER  CASE 

The  following  is  the  complete  text  of  the  opinion  of 
Justice  Robert  W.  Steele,  of  the  Supreme  Court  of  Colorado, 
in  the  Moyer  habeas  corpus  case,  as  handed  down  by  him 
June  30,  1904  (35  Colo.,  p.  170)  : 

No  person  who  has  the  slightest  claim  to  respectability 
should  hesitate  to  approve  the  action  of  the  governor  in 
enforcing  the  law,  and  I  am  willing  to  uphold  him  and  to 
applaud  him  so  long  as  he  keeps  within  the  lines  of  the 
constitution.  But  I  am  not  willing  to  uphold  him  when, 
in  my  opinion,  he  breaks  down  the  barriers  erected  by  the 
people  for  their  protection,  nor  am  I  willing  to  accord  to 
the  constitution  elastic  properties  for  the  purpose  of  sustain- 
ing him,  nor  to  join  in  the  establishment  of  a  precedent 
which  will  not  apply  to  other  classes  or  other  conditions 
when  another  governor  undertakes  to  exercise  the  same  arbi- 
trary power. 

I  am  not  willing  to  concede  the  power  claimed  by  the 
governor  and  exercised  by  him,  because,  in  my  opinion,  such 
power  is  not  vested  in  him  by  the  constitution.  The  people 
could  never  have  intended  to  erect  such  an  engine  of 
oppression. 

It  follows,  of  course,  that  if  the  present  executive  is 
the  sole  judge  of  the  conditions  which  can  call  into  action 
the  military  power  of  the  government,  and  can  exercise  all 
means  necessary  to  effectually  abate  the  conditions,  and  the 
judicial  department  cannot  inquire  into  the  legality  of  his 
acts,  that  the  next  governor  may  by  his  edict  exercise  the 
same  arbitrary  power.  If  the  military  authority  may  deport 
the  miners  this  year  it  can  deport  the  farmers  next  year. 


120  ROBERT    WILBUR    STEELE 

If  a  Strike  which  is  not  a  rebellion  must  be  so  regarded 
because  the  governor  says  it  is,  then  any  condition  must 
be  regarded  as  a  rebellion^ which  the  governor  declares  to 
be  such;  and  if  any  condition  must  be  regarded  as  a  rebel- 
lion because  the  governor  says  so,  then  any  county  in  the 
state  may  be  declared  to  be  in  a  state  of  rebellion,  whether 
a  rebellion  exists  or  not,  and  every  citizen  subjected  to 
arbitrary  arrest  and  detention  at  the  will  and  pleasure  of 
the  head  of  the  executive  department.  We  may  then,  with 
each  succeeding  change  in  the  executive  branch  of  the  gov- 
ernment, have  class  arrayed  against  class,  and  interest 
against  interest;  and  we  shall  depend  for  our  liberty,  not 
upon  the  constitution,  but  upon  the  grace  and  favor  of  the 
governor  and  his  military  subordinates. 

In  no  other  case  presented  to  this  court  have  principles 
so  important  and  far-reaching  been  involved.  It  was  elab- 
orately and  ably  argued,  and  the  position  of  counsel  was 
clearly  defined;  yet  the  court  has  evaded  the  fundamental 
questions  presented,  and  has  based  its  decision  upon  theories 
long  ago  determined  by  jurists  and  statesmen  to  be  illogical 
and  false. 

On  the  part  of  the  petitioner  it  was  urged  that  he  was 
illegally  restrained  of  his  liberty,  that  a  court  of  competent 
jurisdiction  had  ordered  him  released  on  habeas  corpus,  and 
that  the  military  authorities  had  refused  to  release  him  and 
had  refused  to  permit  the  civil  authorities  to  serve  process 
upon  them. 

On  behalf  of  the  military  officers,  it  was  said  that  they 
had  been  ordered  by  the  governor  not  to  release  upon  writ 
of  habeas  corpus,  and  on  behalf  of  the  governor  it  was 
contended  that  he  had  declared  the  county  of  San  Miguel 
to  be  in  a  state  of  insurrection  and  rebellion,  and  that  under 
such  conditions  he  had  authority  to  enforce  martial  law  and 
to  suspend  the  privilege  of  the  writ  of  habeas  corpus. 


THE    OPINION    IN    THE    MOVER   CASE  121 

As  these  propositions  strike  at  the  very  foundation  of 
our  government,  as  the  court  has  evaded  a  consideration  of 
them,  and  as  I  believe  they  present  the  only  questions  in 
the  case,  I  shall  discuss  them  and  ignore  for  the  present  a 
consideration  of  the  opinion,  with  the  observation  that  it 
establishes  a  precedent  that  is  so  repugnant  to  my  notions 
of  civil  liberty,  so  antagonistic  to  my  ideas  of  a  republican 
form  of  government  and  so  shocking  to  my  sense  of  pro- 
priety and  justice  that  I  cannot  properly  characterize  it. 

We  should  have  before  us  the  facts.  The  governor  of 
the  state,  on  March  23,  1904,  by  his  proclamation,  said: 

"Whereas,  there  exists  in  San  Miguel  County,  Colorado,  a 
certain  class  of  individuals  who  are  acting  in  conjunction  with  a 
certain  large  number  of  persons  outside  of  said  county,  who  are 
fully  armed  and  acting  together;  and, 

"Whereas,  open  and  public  threats  have  been  made  to  resist 
the  laws  of  this  state  and  offer  violence  to  citizens  and  property 
located  in  San  Miguel  County;  and, 

"Whereas,  at  divers  and  sundry  other  times  various  crimes 
have  been  committed  in  San  Miguel  County,  by  or  with  the  aid  and 
under  the  direction  of  said  vicious  and  lawless  persons;   and, 

"Whereas,  threats,  intimidations  and  violence  are  threatened 
and  believed  will  be  resorted  to  by  said  lawless  class  of  individ- 
uals; and, 

"Whereas,  it  is  stated  to  me  by  the  sheriff  of  said  San  Miguel 
County  that  these  forces  within  and  without  said  county  are  about 
to  join  forces  within  said  San  Miguel  County,  for  the  purpose  of 
destroying  property  and  inflicting  personal  injuries  upon  the  citizens 
of  said  county;  and, 

"Whereas,  by  reason  of  such  lawlessness  and  disturbances  and 
threatened  acts  of  violence,  the  civil  authorities  are  unable  to  cope 
with  the  situation ; 

"Now,  therefore,  I,  James  H.  Peabody,  governor  and  com- 
mander-in-chief of  the  military  forces,  by  virtue  of  the  power  and 
authority  in  me  vested,  do  hereby  proclaim  and  declare  the  said 
county  of  San  Miguel,  in  the  state  of  Colorado,  to  be  in  a  state  of 
insurrection  and  rebellion." 

In  the  petition  for  the  writ  of  habeas  corpus  filed  herein 
the  said  proclamation  is  set  forth,  and  it  is  alleged  that  the 
petitioner,  while  he  was  in  the  county  of  Ouray,  was 
arrested  upon  a  warrant  issued  by  a  justice  of  the  peace  of 


122  ROBERT    WILBUR    STEELE 

said  San  Miguel  County,  and  was  conveyed  to  the  county 
of  San  Miguel,  where  he  gave  bond  in  the  penal  sum  of 
$500  for  his  appearance  before  the  District  Court  of  said 
county  on  May  10,  1904;  that  upon  his  discharge  from  the 
custody  of  the  sheriff  he  was  arrested  by  the  adjutant  gen- 
eral of  the  state,  who  was  then  in  the  county  of  San  Miguel 
as  the  commander  of  a  portion  of  the  national  guard  of  the 
state;  that  upon  March  30,  1904,  a  writ  of  habeas  corpus 
was  issued  by  the  judge  of  the  District  Court  within  and 
for  the  county  of  Montrose,  returnable  on  April  11,  1904; 
that  upon  the  said  nth  day  of  April,  no  return  having 
been  made  to  the  writ,  the  court  ordered  the  discharge  of 
the  petitioner,  but,  notwithstanding  the  order  of  the  court, 
the  said  respondents  refused  to  discharge  him;  that  the 
petitioner  is  not  guilty  of  any  offense,  has  violated  no  law, 
and  that  no  indictment,  information  or  complaint  has  been 
filed  against  him  except  the  complaint  mentioned  under 
which  he  was  admitted  to  bail ;  that  the  charge  in  the  said 
complaint  is  without  foundation,  and  the  said  respondents 
have  refused  to  file  complaint  against  the  petitioner,  and 
have  refused  to  inform  him  of  the  charge  against  him. 

This  court  thereupon  issued  a  writ  returnable  April 
21  following. 

On  the  return  day  of  the  writ  the  respondent,  Sherman 
Bell,  produced  the  body  of  the  petitioner.  At  the  same  time 
a  return  to  the  writ  was  made,  in  which  the  jurisdiction  of 
the  court  is  challenged.  The  return  sets  forth  the  procla- 
mation of  the  governor,  and  states  that  the  respondent, 
having  been  so  ordered  by  the  governor,  proceeded  to  the 
county  of  San  Miguel  with  a  portion  of  the  national  guard 
of  the  state;  that  upon  his  arrival  at  the  county  of  San 
Miguel,  he  had  good  reason  to  believe  and  did  and  does  in 
good  faith  believe,  and  upon  due  inquiry  in  the  premises 
became  personally   and   officially   fully  satisfied   and   con- 


THE    OPINION    IN    THE    MOVER    CASE  I23 

vinced  that  the  petitioner  had  been  and,  if  discharged  from 
arrest,  would  continue  to  be  an  active  participant  in  foment- 
ing and  keeping  alive  the  said  condition  of  insurrection  and 
rebellion,  *  *  *  and  was  and  is  a  prominent  leader  of  the 
bands  of  lawless  men  engaged  in  the  acts  of  insurrection  and 
crime  mentioned  in  the  proclamation  of  the  governor;  and 
that,  in  order  to  accomplish  the  suppression  of  said  state  of 
insurrection  and  rebellion,  it  was  and  is,  in  the  judgment 
of  said  governor  and  the  respondent,  absolutely  necessary  to 
arrest,  detain  and  for  some  time  to  come  to  restrain  the  body 
of  the  said  Charles  H.  Moyer,  in  the  course  of  an  absolutely 
necessary  step  in  the  matter  of  suppressing  said  state  of 
insurrection  and  rebellion.  *  *  *  That  the  exigencies 
of  the  military  situation  imperatively  required  the  further 
detention  of  said  Moyer  to  prevent  him  from  lending  aid, 
comfort,  direction,  instructions  and  commands  to  the  said 
lawless  persons. 

The  reply  denies  that  there  exists  in  the  county  of  San 
Miguel  a  state  of  either  insurrection  or  rebellion,  and  states 
that  a  large  number  of  miners,  having  been  deported  from 
the  county,  had  announced  their  intention  of  returning 
peaceably  to  their  homes,  and  further  announced  that  to 
that  end  they  would  resist  any  further  interference  with 
their  persons  and  would  resist  any  attempt  at  their  re-depor- 
tation ;  but  that  their  mission  in  returning  was  one  of  peace, 
and  no  force  whatever  would  be  used  by  them  except 
in  defense  of  their  persons  from  attack  by  the  mob.  That 
this  petitioner  has  neither  been  at  any  time,  nor  does  he 
now,  nor  would  he  continue  to  be,  an  active  participant 
either  in  fomenting  or  keeping  alive  any  condition  of 
insurrection  or  rebellion,  and  that  he  has  at  all  times  con- 
ducted himself  in  strict  conformity  to  the  laws  of  the  land, 
and  has  advised,  in  his  capacity  as  president  of  the  Western 
Federation   of   Miners,   that   no   active   lawlessness    should 


124  ROBERT    WILBUR    STEELE 

occur  upon  the  part  of  any  member  of  said  Federation,  to 
the  end  that  no  reflection  might  be  cast  upon  said  organi- 
zation. 

These  facts  present  for  determination  the  question : 
Is  the  petitioner,  under  the  conditions  shown  to  exist, 
entitled  to  the  privilege  of  the  writ  of  habeas  corpus*?  If 
he  is  detained  by  due  process  of  law,  he  is  not  entitled  to  a 
discharge  under  the  writ;  if  he  is  not  so  detained,  he  is 
entitled  to  be  discharged.  If  the  privilege  of  the  writ  has 
been  suspended  by  proper  authority  generally  or  in  his 
particular  case,  he  is  not  entitled  to  be  discharged  during 
the  period  of  suspension.  The  distinction  is  recognized 
between  the  suspension  of  the  privilege  of  the  writ  and  the 
right  of  a  military  officer  to  refuse  obedience  to  its  com- 
mands. Judge  Dixon,  when  chief  justice  of  the  Supreme 
Court  of  Wisconsin,  and  during  the  period  of  the  Civil 
War,  said : 

"I  agree  that  there  is  a  plain  distinction  between  the  suspension 
of  the  writ  in  the  sense  of  the  clause  of  the  constitution,  and  the 
right  of  a  military  commander  to  refuse  obedience  when  justified 
b}'  the  exigencies  of  war  or  the  ipso  facto  suspension  which  takes 
place  when  martial  law  actually  exists.  *  *  *  But  this  kind  of 
suspension,  which  comes  with  war  and  exists  without  proclamation 
or  other  act,  is  limited  by  the  necessities  of  war.  It  applies  only  to 
cases  where  the  demands  upon  the  officer's  time  are  such  that  he 
cannot,  consistently  with  his  superior  military  duty,  yield  obedience 
to  the  mandates  of  the  civil  authorities,  and  to  cases  arising  within 
districts  which  are  properly  subjected  to  martial  law."  {In  re 
Kemp,  16  Wisconsin,  368.) 

The  return  does  not  justify  the  detention  of  the  pris- 
oner upon  the  ground  that  the  military  exigencies  are  such 
that  the  respondent  cannot  leave  his  command  for  the  pur- 
pose of  yielding  obedience  to  the  writ.  Moreover,  it  is 
common  knowledge  that  the  commander  of  the  army  of 
the  San  Miguel,  when  executive  functions  did  not  require 
his  attendance  in  other  parts  of  the  Union,  has  been  at  the 
capital  much  of  the  time.     The  return  not  showing  a  state 


Robert  Wilbur  Steele 
(From  photograph,   1883) 


THE    OPINION    IN    THE    MOVER   CASE  125 

of  facts  which  justifies  disobedience  of  the  writ,  the  peti- 
tioner is  entitled  to  his  discharge  unless  the  return  shows 
that  he  is  held  by  due  process  of  law.  In  the  return  it  is 
stated  that  the  respondent  has  been  ordered  by  the  execu- 
tive head  of  the  state  to  refuse  to  surrender  the  petitioner, 
upon  writ  of  habeas  corpus  or  otherwise ;  and  his  counsel 
contend  that  the  governor,  under  the  constitution,  has  the 
power  to  suspend  the  privilege  of  the  writ  and  that  in  this 
case  he  has  virtually  done  so,  although  no  proclamation 
that  he  has  done  so  has  been  made  and  although  he  does 
not  expressly  say  so  in  the  return.  If  the  power  to  suspend 
the  privilege  of  the  writ  is  vested  in  the  executive  head  of 
the  state,  it  seems  to  me  that  it  is  not  important  how  or  in 
what  manner  it  is  exercised.  But  it  is  so  clear  that  the 
power  to  suspend  the  privilege  of  the  writ  of  habeas  corpus 
is  not  lodged  in  the  executive  branch  of  the  government 
that  it  seems  like  a  waste  of  time  to  discuss  the  question. 
If  there  is  any  one  question  positively  and  finally  settled, 
it  is  that  the  power  to  suspend  the  privilege  of  the  writ  of 
habeas  corpus  is  solely  a  legislative  power.  It  is  based 
upon  a  very  simple  proposition,  which  is,  that  as  the  privi- 
lege of  the  writ  is  granted  by  law,  it  requires  a  law  to 
suspend  that  privilege,  and  that  the  executive  department 
cannot  legislate.  But  let  us  see  what  the  jurists,  the  states- 
men and  the  text  writers  have  to  say  upon  this  subject. 

Bollman  and  Swartout  had  been  arrested  at  New 
Orleans  by  General  Wilkinson  charged  with  having  been 
engaged  with  Burr  in  a  treasonable  conspiracy  against  the 
United  States.  They  were  discharged  by  the  Supreme  Court 
of  the  United  States  upon  the  ground  that  there  was  not 
sufficient  evidence  to  hold  them  upon  the  charge  of  treason. 
In  the  course  of  the  opinion  in  that  case,  Chief  Justice 
Marshall,  in  speaking  of  the  power  vested  in  the  court  to 
issue  the  writ  of  habeas  corpus,  said : 


126  ROBERT    WILBUR    STEELE 


"If  at  any  time  the  public  safety  should  require  the  suspension 
of  the  powers  vested  by  this  act  in  the  courts  of  the  United  States, 
it  is  for  the  legislature  to  say  so.  That  question  depends  on  political 
considerations  on  which  the  legislature  is  to  decide.  Until  the 
legislative  will  be  expressed,  this  court  can  only  see  its  dut)-,  and 
must  obey  the  law."     (4  Cranch,  23.) 

"Joseph  Story,  a  justice  of  the  Supreme  Court,  says,  in  his  work 
on  the  constitution : 

"  'It  is  obvious  that  cases  of  a  peculiar  emergency  may  arise 
which  may  justify — nay,  even  require — the  temporary  suspension  of 
any  right  to  the  writ.  But  as  it  has  frequently  happened  in  foreign 
countries,  and  even  in  England,  that  the  writ  has,  upon  various 
pretexts  and  occasions,  been  suspended,  whereby  persons  appre- 
hended upon  suspicion  have  suffered  a  long  imprisonment,  sometimes 
from  design,  and  sometimes  because  they  were  forgotten,  the  right 
to  suspend  it  is  expressly  confined  to  cases  of  rebellion  or  invasion, 
where  the  public  safety  may  require  it:  a  very  just  and  wholesome 
restraint,  which  cuts  down  at  a  blow  a  fruitful  means  of  oppression, 
capable  of  being  abused  in  bad  times  to  the  worst  of  purposes. 
Hitherto  no  suspension  of  the  writ  has  ever  been  authorized  by 
congress  since  the  establishment  of  the  constitution.  It  would  seem, 
as  the  power  is  given  to  congress  to  suspend  the  writ  of  habeas 
corpus  in  cases  of  rebellion  or  invasion,  that  the  right  to  judge 
whether  exigency  has  arisen  must  exclusively  belong  to  that  bod)'.' 
(Story  on  the  Constitution,  section  1342.)" 

General  Jackson  had  declared  martial  law  at  New 
Orleans  and  had  suspended,  as  a  military  necessity,  the 
privilege  of  the  writ  of  habeas  corpus.  The  authority  of 
General  Jackson  was  considered  in  the  case  of  Johnson  vs. 
Duncan  by  the  Supreme  Court  of  Louisiana.  Judge  Martin, 
one  of  the  most  learned  jurists  of  his  time,  after  citing  the 
case  ex  parte  Bollman,  said : 

"Again,  the  power  of  repealing  a  law  and  that  of  suspending 
it  (which  is  a  practical  repeal)  are  legislative  powers.  For  eodem 
modo  quo  quid  constituitur  eodem  modo  de  Struitnr." 

Judge  Derbigny,  in  his  opinion  in  the  same  case,  said: 

"The  constitution  of  the  United  States,  in  which  everything 
necessary  to  the  general  and  individual  security  has  been  foreseen, 
does  not  provide  that  in  times  of  public  danger  the  executive  power 
shall  reign  to  the  exclusion  of  all  others.  It  does  not  trust  into  the 
hands  of  a  dictator  the  reins  of  government.  The  framers  of  that 
charter  were  too  well  aware  of  the  hazards  to  which  they  would 
have  exposed  the  fate  of  the  republic  by  such  a  provision ;  and  had 


THE    OPINION    IN    THE    MOVER    CASE  I27 

they  done  it,  the  states  would  have  rejected  a  constitution  stained 
with  a  clause  so  threatening  to  their  liberties.  In  the  meantime, 
conscious  of  the  necessity  of  removing  all  impediments  to  the  exer- 
cise of  executive  power,  in  cases  of  rebellion  or  invasion,  they  have 
permitted  congress  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus  in  those  circumstances,  if  the  public  safety  should  require  it. 
Thus  far,  and  no  farther,  goes  the  constitution." 

And,  having  quoted  from  an  English  author,  says 
further : 

"And  can  it  be  asserted  that  while  British  subjects  are  thus 
secured  against  oppression  in  the  worst  of  times,  American  citizens 
are  left  at  the  mercy  of  the  will  of  an  individual,  who  may,  in 
certain  cases,  the  necessity  of  which  is  to  be  judged  of  by  himself, 
assume  a  supreme,  overbearing,  unbounded  power!  The  idea  is 
not  only  repugnant  to  the  principles  of  any  free  government,  but 
subversive  of  the  very  foundations  of  our  own." 

Caleb  Gushing,  who  was  nominated  by  President  Grant 
for  chief  justice  of  the  United  States,  said,  while  he  was 
attorney  general  of  the  United  States,  in  an  opinion  to  the 
secretary  of  state  : 

"And  it  may  be  assumed  as  a  general  doctrine  of  constitutional 
jurisprudence  in  all  the  United  States,  that  the  power  to  suspend 
laws,  whether  those  granting  the  writ  of  habeas  corpus  or  any  other, 
is  vested  exclusively  in  the  legislature  of  the  particular  state." 
(8  Opinions  Attorney  General,  365.) 

In  the  year  1807  President  Jefferson  sent  to  the  senate, 
in  confidence,  a  message  detailing  the  circumstances  attend- 
ing the  arrest  of  persons  charged  with  treason.  On  the 
following  day  Senator  Giles,  of  \'irginia,  a  friend  and 
supporter  of  the  president,  moved  the  appointment  of  a 
committee  to  inquire  whether  it  was  expedient,  in  the  con- 
dition of  public  affairs,  to  suspend  the  privilege  of  the  writ 
of  habeas  corpus.  Senator  Giles  forthwith  reported  a  bill 
authorizing  the  suspension  of  the  privilege  of  the  writ  for 
the  period  of  three  months,  and  the  bill  was  immediately 
passed  by  the  senate  and  sent  to  the  house  in  confidence. 
The  house  declared,  by  a  vote  of  123  to  3,  that  the  message 
ought  not  to  be  kept  secret,  and  a  public  debate  upon  the 


128  ROBERT    WILBUR    STEELE 

subject  occurred.  I  shall  quote  from  the  debate  somewhat 
at  length,  for  the  reason  that  there  appears  to  have  been 
such  a  unanimity  of  sentiment  on  the  subject  by  the  states- 
men of  that  period  that  we  should  accept  their  views  as  a 
guide  for  our  action. 

Mr.  Burwell,  of  Virginia,  is  reported  to  have  said : 

"He  would  ask  gentlemen  if  they  seriously  believed  the  dan- 
ger sufficiently  great  to  justify  the  suspension  of  this  most  important 
right  of  the  citizen,  to  proclaim  the  country  in  peril  and  to  adopt 
the  measure  so  pregnant  with  mischief  by  which  the  innocent  and 
guilty  will  be  involved  in  one  common  destruction?  He  said  this 
was  not  the  first  instance  of  the  kind  since  the  formation  of  the 
federal  government;  there  had  been  already  two  insurrections  in 
the  United  States,  both  of  which  had  defied  the  authority  of  congress 
and  menaced  the  Union  with  dissolution.  Notwithstanding  one  of 
them  justified  the  calling  out  of  15,000  men  and  the  expenditure  of 
1,000,000  of  dollars,  he  had  not  heard  of  a  proposition  to  suspend 
the  writ  of  habeas  corpus.  What,  then,  will  be  said  of  us,  if  now, 
when  the  danger  is  over,  firm  in  the  attachment  of  the  people  to  the 
Union,  with  ample  resources  to  encounter  any  difficulty  which  may 
occur,  we  resort  to  a  measure  so  harsh  in  its  nature,  oppressive  in 
its  operation  and  ruinous  as  a  precedent?  *  *  *  Nothing  but  the 
most  imperious  necessity  would  excuse  us  in  confiding  to  the  execu- 
tive, or  any  person  under  him,  the  power  of  seizing  and  confining 
a  citizen,  upon  bare  suspicion,  for  three  months,  without  responsi- 
bility, for  the  abuse  of  such  unlimited  discretion.  *  *  *  The 
people  of  the  United  States  would  have  just  reason  to  reproach 
their  representatives  with  wantonly  sacrificing  their  dearest  inter- 
ests when,  from  the  facts  presented  to  this  house,  it  seems  the  country 
was  perfectly  safe  and  the  conspiracy  nearly  annihilated.  Under 
these  circumstances,  there  can  be  no  apology  for  suspending  the 
privilege  of  the  writ  of  habeas  corpus  and  violating  the  constitution, 
which  declares,  'The  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when,  in  cases  of  invasion  or  rebellion,  *  *  *'  What,  in 
another  point  of  light,  would  be  the  effect  of  passing  such  a  law? 
Would  it  not  establish  a  dangerous  precedent?  A  corrupt  and 
vicious  administration,  under  the  sanction  and  example  of  this  law, 
might  harass  and  destroy  the  best  men  of  the  country.  It  would 
only  be  necessary  to  excite  artificial  commotions,  circulate  exagger- 
ated rumors  of  danger,  and  then  follows  the  repetition  of  this  law- 
by  which  every  obnoxious  person,  however  honest,  is  surrendered 
to  the  vindictive  resentment  of  the  government.  It  will  not  be  a 
sufficient  answer  that  this  power  will  not  be  abused  by  the  president 
of  the  United  States.  He,  Mr.  B.  believed,  would  not  abuse  it,  but 
it  would  be  impossible  to  restrain  all  those  who  are  under  him. 
Besides,  he  would  not  consent  to  advocate  a  principle  bad  in  itself 
because  it  will  not,  probably,  be  abused." 


THE    OPINION    IN    THE    MOVER    CASE  I29 

Mr.  Elliott,  of  Vermont,  said: 

"It  is,  indeed,  difficult  for  me,  consistently  with  the  sincere  and 
high  respect  which  I  entertain  for  the  source  from  whence  this  meas- 
ure originated,  to  express,  in  decorous  terms,  the  hostility  which  I 
feel  to  the  proposition.  I  am,  therefore,  disposed  to  consider  it  as 
an  original  proposition  here;  as  a  motion  in  this  body  to  suspend, 
for  a  limited  time,  the  privileges  attached  to  the  writ  of  habeas 
corpus.  And,  in  this  point  of  view,  I  am  prepared  to  say  that  it  is 
the  most  extraordinary  proposition  that  has  ever  been  presented  for 
our  consideration  and  adoption.  Sir,  what  is  the  language  of  our 
constitution  upon  this  subject?  'The  privilege  of  the  writ  of  habeas 
corpus  shall  not  be  suspended,  except  when,  in  cases  of  invasion  or 
rebellion,  the  public  safety  shall  require  it.'  Have  we  a  right  to 
suspend  it  in  any  and  every  case  of  invasion  and  rebellion?  So  far 
from  it,  that  we  are  under  a  constitutional  interdiction  to  act,  unless 
the  existing  invasion  or  rebellion,  in  our  sober  judgment,  threatens 
the  first  principles  of  the  national  compact,  and  the  constitution 
itself.  In  other  words,  we  can  only  act  in  this  case  with  a  view  to 
national  self-preservation.  We  can  suspend  the  writ  of  habeas  corpus 
only  in  a  case  of  extreme  emergency;  that  alone  is  salus  populi 
which  will  justify  this  lex  suprema.  And  is  this  a  crisis  of  such 
awful  moment?  Is  it  necessary  at  this  time,  to  constitute  a  dictator- 
ship to  save  the  people  from  themselves,  and  to  take  care  that  the 
republic  shall  receive  no  detriment?  What  is  the  proposition?  To 
create  a  single  dictator,  as  in  ancient  Rome,  in  whom  all  power 
shall  be  vested  for  a  time?  No;  to  create  one  great  dictator  and  a 
multitude,  an  army  of  subaltern  and  petty  despots;  to  invest,  not 
only  the  president  of  the  United  States,  but  the  governors  of  states 
and  territories,  and,  indeed,  all  persons  deriving  civil  or  military 
authority  from  the  supreme  executive,  with  unlimited  and  irrespon- 
sible power  over  the  personal  liberty  of  your  citizens.  *  *  * 
An  eminent  English  author,  and  the  most  popular  writer  upon  the 
subjects  of  legal  science,  considers  its  suspension  as  the  suspension 
of  liberty  itself;  declares  that  the  measure  ought  never  to  be  resorted 
to  but  in  cases  of  extreme  emergency,  and  says  that  the  nation  then 
parts  with  its  freedom  for  a  short  and  limited  time,  only  to  resume 
and  secure  it  forever.  Hence,  he  compares  the  suspension  of  the 
habeas  corpus  act  in  Great  Britain  to  the  dictatorship  of  the  Roman 
republic." 

Mr.  Eppes  said : 

"By  this  bill  we  are  called  upon  to  exercise  one  of  the  most 
important  powers  vested  in  congress  by  the  constitution  of  the 
United  States.  A  power  which  suspends  the  personal  rights  of  your 
citizens,  which  places  their  liberty  wholly  under  the  will,  not  of 
the  executive  magistrate  only,  but  of  his  inferior  officers.  Of  the 
importance  of  this  power,  of  the  caution  which  ought  to  be  employed 
in  its  exercise,  the  words  of  the  constitution  afford  irresistible  evi- 
dence.    *     *     *     Well,  indeed,  may  this  caution  have  been  used  as 


130  ROBERT    WILBUR    STEELE 

to  the  exercise  of  this  important  power.  It  is,  in  a  free  country,  the 
most  tremendous  power  which  can  be  placed  in  the  hands  of  a 
legislative  body.  It  suspends,  at  once,  the  chartered  rights  of  the 
community,  and  places  even  those  who  pass  the  act  under  military 
despotism.  The  constitution,  however,  having  vested  this  power  in 
congress  and  a  branch  of  the  legislature  having  thought  its  exercise 
necessary,  it  remains  for  us  to  inquire  whether  the  present  situation 
of  our  country  authorizes,  on  our  part,  a  resort  to  this  extraordinary 
measure.  *  *  *  This  government  has  now  been  in  operation 
thirty  years;  during  this  whole  period,  our  political  charter,  what- 
ever it  may  have  sustained,  has  never  been  suspended.  Never, 
under  this  government,  has  personal  liberty  been  held  at  the  will 
of  a  single  individual.  Shall  we,  sir,  suspend  the  chartered  rights 
of  the  community  for  the  suppression  of  a  few  desperadoes?  *  *  * 
I  consider  the  provisions  in  the  constitution  for  suspending  the 
habeas  corpus  as  designed  only  for  occasions  of  great  national 
danger." 

Mr.  Nelson  said : 

"This  precedent,  let  me  tell,  gentlemen,  may  be  ruinous,  may 
be  a  most  damnable  precedent — a  precedent  which,  hereafter,  may 
be  most  flagrantly  abused.  The  executive  may  wish  to  make  use 
of  more  energetic  measures  than  the  established  laws  of  the  land 
enable  him  to  do;  he  will  resort  to  this  as  a  precedent,  and  this 
important  privilege  will  be  suspended  at  the  smallest  appearance 
of  danger.  The  effect  will  be  that,  whenever  a  man  is  at  the  head 
of  our  affairs  who  wishes  to  oppress  or  wreak  his  vengeance  on 
those  who  are  opposed  to  him,  he  will  fly  to  this  as  a  precedent. 
It  will  truly  be  a  precedent  fraught  with  the  greatest  danger;  a 
precedent  which  ought  not  to  be  set  except  in  a  case  of  the  greatest 
necessity;  indeed,  I  can  hardly  contemplate  a  case  in  which,  in  my 
opinion,  it  can  be  necessary." 

Mr.  Randolph  said: 

"If  the  bill  passes,  we  are  told,  it  will  be  but  temporary.  *  *  * 
As  to  the  three  months'  continuance,  I  consider  that  as  one  of  the 
most  objectionable  features  of  the  bill — as  a  bait  to  the  trap — as  the 
entering  wedge.  If  it  is  made  reconcilable  to  the  interests  and 
feelings  of  this  house  to  pass  it  for  three  months,  do  you  think  we 
will  feel  the  same  lively  repugnance  to  it  that  we  do  now?  No! 
It  has  been  truly  said  that  no  man  becomes  perfectly  wicked  at 
once;  and  it  may  be  affirmed,  with  equal  truth,  that  a  nation  is 
never  enslaved  at  once.  Men  must  be  initiated  by  degrees,  and- 
their  repugnance  must  be  gradually  overcome." 

Mr.  Smilie  said : 

"I  consider  this  one  of  the  most  important  subjects  upon  which 
we  have  been  called  to  act.  It  is  a  question  which  is  neither  more 
nor  less  than  whether  we  shall  exercise  the  only  power  with  which 


THE    OPINION    IN    THE    MOYER    CASE  I3I 

we  are  clothed  to  repeal  an  important  part  of  the  constitution.  It  is 
in  this  case  only  that  we  have  power  to  repeal  that  instrument.  A 
suspension  of  the  privilege  of  the  writ  of  habeas  corpus  is,  in  all 
respects,  equivalent  to  repealing  that  essential  part  of  the  constitu- 
tion which  secures  that  principle  which  has  been  called,  in  the 
country  where  it  originated,  the  'palladium  of  personal  liberty.' 
If  we  recur  to  England,  we  shall  find  that  the  writ  of  habeas  corpus 
in  that  country  has  been  frequently  suspended.  But,  under  what 
circumstances?  We  find  it  was  suspended  in  the  year  1715.  But 
what  was  the  situation  of  the  country  at  that  time?  It  was  invaded 
by  the  son  of  James  II.  There  was  a  rebellion  within  the  kingdom, 
and  an  army  was  organized.  The  same  thing  happened  in  the  year 
1745.  On  this  occasion  it  was  found  necessary  to  suspend  it.  In 
later  times,  when  the  government  had  grown  more  corrupt,  we  have 
seen  it  suspended  for  an  infinitely  less  cause.  We  have  taken  from 
the  statute  book  of  this  country  this  most  valuable  part  of  our  con- 
stitution. The  convention  which  framed  that  instrument,  believing 
that  there  might  be  cases  when  it  would  be  necessary  to  vest  a 
discretionary  power  in  the  executive,  have  constituted  the  legislature 
the  judge  of  this  necessity,  and  the  only  question  now  to  be  deter- 
mined is,  does  this  necessity  exist?" 

Mr.  Dana  said : 

"I  have  been  accustomed  to  view  the  privilege  of  the  writ  of 
habeas  corpus  as  the  most  glorious  invention  of  man.  *  *  * 
There  is  another  principle  which  appears  to  me  highly  objectionable. 
It  authorizes  the  arrest  of  persons,  not  merely  by  the  president  or 
other  high  officers,  but  by  any  person  acting  under  him.  I  imagine 
this  to  be  wholly  without  precedent.  If  treason  were  marching  to 
force  us  from  our  seats,  I  would  not  agree  to  do  this.  I  would  not 
agree  thus  to  destroy  the  fundamental  principles  of  the  constitution 
or  to  commit  such  an  act  either  of  despotism  or  pusillanimity.  Under 
this  view  of  the  subject,  I  am  disposed  to  reject  the  bill  as  contain- 
ing a  proposition  on  which  I  cannot  deliberate."  (Annals  of  Con- 
gress, Ninth  Congress,  Second  Session,  pp.  402-424.) 

And  the  house  of  representatives,  by  a  vote  of  113  to 
19,  refused  to  refer  this  bill  to  a  committee,  but,  upon  first 
reading  thereof,  indefinitely  postponed  it;  and  of  the  19 
members  who  voted  against  the  motion,  very  many  were 
opposed  to  the  bill. 

In  February  following,  another  debate  occurred,  at 
which  time  Mr.  Broom,  of  Delaware,  is  reported  to  have 
said: 

"In  ordinary  times  the  laws  which  already  exist  may  be  suffi- 
cient,  for   in    such   times   there    is   no   temptation   to   transgress   the 


132  ROBERT    WILBUR    STEELE 

limits  of  constitutional  or  legal  privileges;  but  in  times  of  turbu- 
lence and  commotion  the  mere  formal  recognition  of  rights  will  afford 
too  feeble  a  barrier  against  the  inflamed  passions  of  men  in  power, 
whether  excited  by  an  intemperate  zeal  for  the  supposed  welfare  of 
the  country,  or  by  the  detestable  motives  of  party  rancor  or  indi- 
vidual oppression.  I  could  have  wished  that  circumstances  had 
never  occurred  which  would  make  it  necessar}^  to  fortify,  by  penal 
laws,  the  constitutional  privilege  of  habeas  corpus,  and  that  the 
whole  nation,  from  the  first  to  the  least,  had  regarded  it  with  such 
religious  veneration  that  no  officer,  either  military  or  civil,  would 
have  dared  to  violate  it.  But  recent  circumstances  have  proved  that 
such  a  wish  would  have  been  in  vain,  and  have  demonstrated,  more 
powerfully  than  any  abstract  reasoning,  the  necessity  and  impor- 
tance of  further  legislative  provision. 

"This  privilege  of  the  writ  of  habeas  corpus  has  been  deemed 
so  important  that,  by  the  ninth  section  of  the  first  article  of  the 
constitution,  it  is  declared  that  it  shall  not  be  suspended  unless  when, 
in  cases  of  rebellion  or  invasion,  the  public  safety  may  require  it. 
Such  is  the  value  of  this  privilege  that  even  the  highest  legislative 
body  of  the  Union — the  legitimate  representatives  of  the  nation — 
are  not  entrusted  with  the  guardianship  of  it,  or  suffered  to  lay 
their  hands  upon  it  unless  when,  in  cases  of  extreme  danger,  the 
public  safety  shall  make  it  necessary.  The  suspension  of  this  privi- 
lege upon  slight  pretenses,  it  was  easily  foreseen,  would  destroy  its 
efficacy,  and  if  it  depended  on  the  mere  will  of  congress  it  would 
become,  in  the  hands  of  the  majority,  the  most  certain  and  con- 
venient means  to  accomplish  the  purposes  of  party  persecution  or 
to  gratify  political  or  personal  rancor  or  animosity.     *     *     * 

"In  England  this  inestimable  privilege  has  been  for  ages  the 
proud  theme  of  exultation.  There  they  worshipped  it  as  a  talis- 
manic  wand  which  could  unbar  the  gates  of  the  strongest  prison  and 
dissolve  in  an  instant  the  fetters  of  the  captive.  It  was  to  English- 
men as  a  wall  of  fire  by  night,  shielding  them  from  the  arbitrary 
sway  of  tyrannic  power.     *     *     * 

"Yet,  however  important  these  rights  may  be,  a  few  moments' 
reflection  will  satisfy  us  that,  without  the  writ  of  habeas  corpus, 
they  could  avail  but  little.  The  rights  may  exist  as  abstract  rights, 
but  the  writ  of  habeas  corpus  affords  the  most  important,  if  not  the 
only  means  of  exercising  them.  In  vain  does  the  law  proclaim  that 
no  man  shall  be  imprisoned  contrary  to  law,  if  a  party  has  no  access 
to  a  tribunal  to  decide  the  question  of  legality.  In  vain  does  the 
law  promise  a  trial  by  peers  if  the  imprisoned  party  can  have  no 
access  to  a  tribunal  where  he  may  demand  such  trial.  In  short, 
without  the  writ  of  habeas  corpus,  rights  of  personal  liberty,  how- 
ever solemnly  proclaimed,  would  exist  but  in  name.  This  writ  of 
habeas  corpus  is  coeval  with  the  rights  which  it  secures.  It  existed 
by  force  of  the  common  law  until  the  subtleties  of  lawyers  had 
nearly  refined  it  away,  when  it  was  aided  by  the  statute  of  Charles, 
and  has  since  been  found  fully  adequate  to  produce  the  desired 
effect.  If,  then,  this  privilege  has  been  productive  of  the  most 
salutary  effects  in  England  in  guarding  the  liberty  of  the  subject, 


THE    OPINION    IN    THE    MOVER    CASE  133 

we  have  the  strongest  proof  that  we  can  require  of  its  importance  to 
us  except  our  own  experience.  It  is  true  we  live  under  a  form  of 
government  where  the  sovereignty  is  acknowledged  to  belong  to  the 
people,  but  let  us  not  vainly  imagine  that  we  have  no  necessity  for 
laws  restrictive  upon  men  in  power.  Under  the  fair  semblance  of 
republicanism  has  often  been  practised  the  most  detestable  tyranny, 
and  the  mild  laws  of  a  republic  have  too  often  afforded  a  shelter 
for  knaves  and  tyrants,  instead  of  a  shield  for  the  virtuous  and 
oppressed.     *     *     * 

"For  my  own  part,  I  wish  to  live  under  a  government  of  laws, 
and  not  of  men ;  for,  however  pure  and  upright  be  the  intentions 
of  our  military  commanders,  however  virtuous  and  even  unsus- 
pected be  their  conduct,  I  can  never  agree  that  my  right  of  per- 
sonal liberty  shall  depend  upon  their  forbearance  and  discretion. 
I  know  not  whether  these  men  that  have  been  arrested  are  innocent 
or  guilty  of  the  treason  with  which  they  are  charged,  but,  whether 
innocent  or  guilty,  they  must  be  arrested  and  tried  according  to  law. 
However  atrocious  the  crime  which  has  been  committed,  the  punish- 
ment must  be  according  to  law.  For,  in  transgressing  the  limits  of 
the  law  to  revenge  upon  a  criminal  the  wrongs  of  society,  we  are 
guilty  of  injustice  both  to  society  and  the  criminal." 

And  Mr.  Randolph  said: 

"I  make  no  profession  of  sympathy  for  the  men  who  have  been 
denounced  as  traitors.  I  argue  on  the  supposition  that  they  are 
traitors.  There  is  no  need  of  much  exertion  on  behalf  of  good  men. 
Attacks  on  the  liberty  of  the  people  are,  as  has  been  stated  before, 
made  always  in  the  persons  of  the  vile  and  worthless.  But  when 
precedent  is  once  established,  in  the  case  of  bad  men,  who,  like 
pioneers,  go  before  to  smooth  the  way,  good  men  tremble  for  their 
safety.     *     *     *" 

Mr.  Randolph  concluded  by  begging  pardon  for  detaining  the 
house  so  long,  but  he  could  never  be  indifferent  on  a  subject  like 
this.  The  house  were  now  to  decide  if  the  constitution  were  only 
pen,  ink  and  paper,  and  to  be  set  aside  at  the  whim  of  every  mili- 
tary commander,  or  whether  it  were  unalterable  by  fate,  and  if  he 
who  dared  to  violate  it  should  rue  the  consequences.  (Annals  of 
Congress,  Ninth  Congress,  Second  Session,  502-538.) 

Accompanying  the  message  of  the  president  was  a 
letter  from  General  Wilkinson  in  which  he  stated  that  he 
had  delivered  one  person  over  on  habeas  corpus,  but  that 
he  had  evaded  the  writ  as  to  the  other  two  and,  recognizing 
that  he  had  violated  the  law,  said  that  he  should  look  to 
congress  for  indemnity.  A  day  or  two  later  the  president 
sent  a  second  message  to  congress  in  which  he  stated  that 
the  persons  arrested  at  New  Orleans  had  arrived  at  the  seat 


134  ROBERT    WILBUR    STEELE 

of  government  and  that,  immediately  upon  their  arrival, 
he  had  delivered  to  the  proper  authorities  all  evidence  in 
his  possession  and  had  directed  that  proceedings  be  insti- 
tuted against  them  at  once. 

This  debate  should  be  very  instructive.  It  was  par- 
ticipated in  by  members  from  nearly  every  state,  and  being 
at  a  time  so  early  in  our  history,  should  be  regarded  as 
contemporaneous  with  the  constitution.  The  congress,  com- 
posed as  it  was  of  the  ablest  men  of  the  times,  would  not 
consent  to  the  proposition  of  suspending  the  writ  of  habeas 
corpus  for  the  period  of  three  months,  on  the  ground  that 
it  would  create  not  only  a  dictator  in  the  person  of  the 
president,  but  a  horde  of  petty  tyrants  through  the  country, 
and  because  the  necessity  for  so  doing  was  not  so  great  and 
imperious  as  to  justify  them  in  taking  that  course.  From 
the  debate  we  learn  that  at  no  time  before  had  the  privilege 
of  the  writ  been  suspended;  that,  in  the  opinion  of  the 
members  of  this  congress,  the  general  of  the  army  had 
violated  the  law  in  not  turning  over  to  the  civil  authorities 
those  engaged  in  rebellion  against  the  government ;  that  the 
writ  should  not  be  suspended  by  congress  except  the  nation 
itself  was  in  danger;  and  that,  unless  the  privilege  of  the 
writ  was  suspended,  the  military  could  not  arrest  and  hold 
citizens  on  suspicion. 

During  the  period  of  the  Civil  War,  John  Merryman 
was  arrested  by  military  authority  upon  vague  and  indefi- 
nite charges,  without  any  proof  so  far  as  it  appeared.  When 
a  writ  of  habeas  corpus  was  served  requiring  the  officer  to 
produce  the  body  before  the  chief  justice  of  the  United 
States,  in  order  that  inquiry  might  be  made  as  to  the  legality 
of  the  imprisonment,  the  officer  answered  that  he  had  been 
authorized  by  the  president  to  suspend  the  writ  of  habeas 
corpus  and  on  that  ground  refused  obedience  to  the  writ. 
The  constitution  of  the  United  States  contains  this  pro- 
vision : 


THE    OPINION    IN    THE    MOVER    CASE  I35 

"The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it." 

In  the  constitution  of  our  state  the  following  provision 
is  found  : 

"That  the  privilege  of  the  writ  of  habeas  corpus  shall 
never  be  suspended  unless  when,  in  case  of  rebellion  or 
invasion,  the  public  safety  may  require  it." 

The  slight  difference  between  the  federal  and  our  state 
constitution  is  shown  by  the  italics.  The  provision  is  found 
in  our  bill  of  rights,  and  the  conjunction  "that"  connects 
the  opening  sentence,  which  is:  "In  order  to  assert  our 
rights,  acknowledge  our  duties,  and  proclaim  the  principles 
upon  which  our  government  is  founded,  we  declare :"  The 
adverb  "not"  of  the  federal  law  is  replaced  by  the  more 
positive  adverb  "never"  in  ours,  and  the  plural  of  the  noun 
"case"  is  used  in  the  national  constitution,  while  in  ours  the 
singular  appears.     Otherwise  the  sections  are  identical. 

In  construing  this  section  of  the  federal  constitution 
the  chief  justice  of  the  United  States  held  that  the  power 
of  suspending  the  privilege  of  the  writ  was  solely  a  legis- 
lative power.  He  quoted  from  Blackstone,  Hallam,  Mar- 
shall and  Story;  related  the  incident  occurring  in  the  admin- 
istration of  Jefferson ;  reviewed  the  history  of  the  struggles 
of  the  English  speaking  people  which  ended  in  the  enact- 
ment of  the  thirty-first  chapter  of  Charles  II — an  act,  as 
he  declared,  of  great  and  inestimable  value,  because  it  con- 
tains provisions  which  compel  courts  and  judges  and  all 
parties  concerned  to  perform  their  duties  in  a  manner  speci- 
fied in  the  statute ;  and  closes  by  saying : 

"I  can  only  say  that  if  the  authority  which  the  constitution  has 
confided  to  the  judiciary  department  and  judicial  officers  may  thus, 
upon  any  pretext  or  under  any  circumstances,  be  usurped  by  the 
military  power  at  its  discretion,  the  people  of  the  United  States  are 
no  longer  living  under  a  government  of  laws,  but  every  citizen  holds 
life,    liberty    and    property    at    the    will    and    pleasure    of    the    army 


136  ROBERT    WILBUR    STEELE 

officer   in   whose    military    district    he    may    happen    to    be    found." 
(Taney's  Circuit  Court  Decisions,  246.) 

The  decision  of  the  chief  justice  was  assailed  by  many 
able  lawyers  of  the  time,  and  the  chief  justice  was  himself 
denounced  as  a  sympathizer  with  the  rebellion ;  yet,  not- 
withstanding the  great  esteem  in  which  the  president  was 
held  by  the  people  of  the  North — notwithstanding  the  fact 
that  the  life  of  the  republic  was  in  danger — loyal  courts 
all  over  the  North  sustained  the  chief  justice  and  decided 
that  the  executive  had  not  the  power  under  the  constitution 
to  suspend  the  privilege  of  the  writ.  And  finally,  in  1863, 
the  question  was  settled.  Thaddeus  Stevens,  the  leader  of 
the  Union  party,  succeeded  in  passing  through  the  house  of 
representatives  a  bill  authorizing  the  president  to  suspend 
the  privilege  of  the  writ  of  habeas  corpus,  and  to  indemnify 
him  or  other  officers  in  cases  where  damages  were  awarded 
for  arbitrary  arrest.  The  senate  amended  the  bill  and,  after 
a  conference  between  the  two  houses,  it  became  a  law.  Thus 
the  executive  and  legislative  branches  of  the  government 
recognized  the  principles  contended  for  by  the  judicial 
department,  and  it  is  settled  that  congress  only  has  the 
power  of  suspending  the  privilege  of  the  writ  of  habeas 
corpus,  and  that  it  is  the  sole  judge  of  the  conditions  which 
require  its  suspension. 

The  language  employed  is  so  peculiarly  applicable  to 
the  case  at  bar  that  I  shall  quote  from  some  of  the  opinions 
of  those  judges  who  announced  that  the  power  to  suspend 
the  writ  is  legislative  and  not  executive.  In  the  case  Ex 
parte  Benedict  (Federal  Cases,  1292),  Judge  Hall,  of  the 
United  States  Court  for  the  northern  district  of  New  York, 
held  that  the  president  of  the  United  States  is  not  vested 
with  power  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus  at  any  time  without  the  authority  of  an  act  of  con- 
gress.   In  the  course  of  the  opinion  he  said : 


THE    OPINION    IN    THE    MOYER   CASE  I37 

"Even  in  the  midst  of  our  present  struggle  we  should  not  forget 
the  teachings  and  historj'  of  the  past  and  regard  as  trivial  and 
unimportant  constitutional  principles,  the  persistent  violation  of 
vs'hich  led  to  the  dethronement  of  kings  and  the  overthrow  of  long 
established  forms  of  government.  We  should  not  forget  the  letters 
lie  cachet  of  the  French  monarchs,  nor  the  illegal  imprisonments 
under  Charles  I.  In  our  efforts  to  read  aright  and  profit  by  the 
terrible  lesson  which  the  present  condition  of  our  unhappy  country 
presents,  we  should  not  forget  what  Hume  and  Hallam  and  Black- 
stone  and  Marshall  and  Story  and  Kent  taught  us." 

Quoting  from  Blackstone,  he  says  : 

"  'Of  great  importance  to  the  public  is  the  preservation  of  this 
personal  liberty;  for,  if  once  it  were  left  to  the  power  of  any — of 
the  highest  magistrate — to  imprison  whomever  he  or  his  officers 
thought  proper  (as  in  France  it  is  daily  practiced  by  the  crown), 
there  would  soon  be  an  end  of  all  other  rights  and  immunities. 
Some  have  thought  that  unjust  attacks,  even  upon  life  and  property, 
at  the  arbitrary  will  of  the  magistrate,  are  less  dangerous  to  the 
commonwealth  than  such  as  are  made  upon  the  personal  liberty  of 
the  subject.  To  bereave  a  man  of  life,  or  by  violence  to  confiscate 
his  estate  without  accusation  or  trial,  would  be  so  gross  and  notori- 
ous an  act  of  despotism  as  must  at  once  convey  the  alarm  of  tyranny 
throughout  the  whole  kingdom;  but  confinement  of  the  person  by 
secretly  hurrying  him  to  jail,  where  his  sufferings  are  unknown  or 
forgotten,  is  a  less  public,  a  less  striking,  and  therefore  a  more 
dangerous  engine  of  arbitrary  government.  And  yet  sometimes, 
when  a  state  is  in  danger,  even  this  may  be  a  necessary  measure. 
But  the  happiness  of  our  constitution  is,  that  it  is  not  left  to  the 
executive  power  to  determine  when  the  danger  of  the  state  is  so 
great  as  to  render  this  measure  expedient;  for  it  is  the  parliament 
only,  or  legislative  power,  that,  whenever  it  sees  proper,  can  author- 
ize the  crown,  by  suspending  the  habeas  corpus  act  for  a  short  and 
limited  time,  to  imprison  suspected  persons  without  giving  any 
reason  for  so  doing,  as  the  senate  of  Rome  was  wont  to  have  recourse 
to  a  dictator,  a  magistrate  of  absolute  authority,  when  they  judged 
the  republic  in  any  imminent  danger.'  " 

Judge  Hall  then  speaks  of  the  opinion  of  Attorney 
General  Bates,  whose  views  have  been  adopted  in  large 
measure  by  this  court : 

"For  that  gentleman  I  entertain  the  highest  respect.  His  purity 
of  motive  and  character,  his  great  legal  acquirements  and  his 
undoubted  patriotism  and  ability  are  unquestioned;  but,  even  in 
these  respects,  that  excellent  gentleman  would  not  want  his  friend 
to  claim  more  than  that  he  was  the  equal  of  the  learned  chief 
justice  of  the  United  States.  Placing  their  opinions  upon  the  same 
footing,  they  would  only  neutralize  each  other,  and  then  the  delib- 


138  ROBERT    WILBUR    STEELE 

erate  opinions  of  Marshall  and  Story  and  Martin  and  other  justices 
of  the  Supreme  Court  who  concurred  in  the  opinion  of  their  chief  in 
the  case  of  Ex  parte  Bollman  (4  Cranch,  75),  supported,  as  they  are, 
by  unanswerable  argument,  are  decisive  of  the  question,  and  con- 
strain me  to  decide  that  the  president,  without  the  authority  of 
congress,  has  no  constitutional  power  to  suspend  the  privilege  of  the 
writ  of  habeas  corpus  in  the  United  States." 

And  Judge  Hall  ordered  the  discharge  of  the  prisoner. 
In  the  case  In  re  Kemp  (16  Wis,,  p.  382),  Chief  Jus- 
tice Dixon  said : 

"I  think  the  president  has  no  power,  in  the  sense  of  the  ninth 
section  of  the  first  article  of  the  constitution  of  the  United  States, 
to  suspend  the  privilege  of  the  writ  of  habeas  corpus.  It  is,  in  my 
judgment,  a  legislative  and  not  an  executive  act;  and  the  power  is 
vested  in  congress.  Upon  this  question  it  seems  to  me  that  the 
reasoning  of  Chief  Justice  Taney,  in  Ex  parte  Merryman,  is  unan- 
swerable." 

And  Justice  Cole,  in  the  same  case,  said  : 

"To  suspend,  annul  or  take  away  a  right  given  by  law  is,  under 
our  system  of  government,  essentially  a  legislative  function.  To 
deprive  a  citizen  of  the  privilege  of  the  writ  of  habeas  corpus  is  to 
take  from  him  one  of  the  highest  and  most  sacred  rights  secured  to 
him  by  the  constitution  and  laws  of  the  land.  It  is  a  change  of  the 
law  which,  from  the  nature  of  things,  belongs  to  the  power  which 
can  make  the  law." 

Justice   Paine,  in  answering  the  question,   "Where   is 
the  power  to  suspend  the  writ  lodged  ^"  said : 

"From  its  very  nature  it  would  not  naturally  be  entrusted  to  a 
single  man,  and  that  man  at  the  head  of  the  military.  It  is  a 
power  dangerous  anywhere.  It  delivers  over  the  nation,  for  the  time 
being,  to  the  control  of  the  executive.  It  makes  him  substantially 
what  the  Roman  dictator  was.  No  single  officer  should  be  allowed 
to  assume  such  powers  upon  his  own  judgment  only.  The  nation 
that  is  to  be  subjected  to  them  should  have  some  voice  in  deter- 
mining when  the  necessity  arises  for  their  existence.  And  as  in 
Rome  there  was  no  officer  who  could  assume  the  power  of  the  dic- 
tator upon  his  own  judgment,  but  such  officer  had  to  be  appointed 
by  a  vote  of  the  senate,  so  here  the  power  to  suspend  the  writ  of 
habeas  corpus  would  naturally  have  been  entrusted  to  the  legisla- 
ture, and  not  to  the  executiv'e  alone.  There  the  constitution  has 
placed  it.  So  the  Supreme  Court  of  the  United  States  has  declared. 
So  it  has  been  held  by  every  judicial  decision,  and  every  elementary 
writer  on  constitutional  law." 


THE    OPINION    IN    THE    MOVER    CASE  I39 

In  Griffin  vs.  Wilcox  (21  Ind.,  270)  and  Warren  vs, 
Paul  (22  Ind.,  276),  the  Supreme  Court  of  Indiana  said 
that  the  section  of  the  constitution  authorizing  the  suspen- 
sion of  the  writ  of  habeas  corpus,  in  case  of  invasion  or 
rebellion,  was  a  delegation  of  power  to  the  legislature,  and 
not  to  the  executive  authority. 

In  the  Circuit  Court  of  the  United  States  for  the  dis- 
trict of  California,  and  in  the  case  of  McCall  vs.  McDowell, 
Judge  Deady,  delivering  the  opinion,  said,  with  reference 
to  the  power  of  the  president  to  suspend  the  writ  of  habeas 
corpus : 

"I  do  not  propose  to  argue  the  question.  There  are  some  things 
too  plain  for  argument,  and  one  of  these  is  that  by  the  constitution 
of  the  United  States  the  president  has  not  the  power  to  suspend  the 
privilege  of  the  writ,  and  that  congress  has.  The  power  of  the 
president  is  executive  power — a  power  to  execute  the  laws,  but  not 
to  suspend  them.  The  latter  is  a  legislative  function,  and  so  far  as 
it  exists,  belongs  naturally  and  by  force  of  the  constitution  exclu- 
sively to  congress."     (I  Abbott's  U.  S.  Rep.,  212.) 

A  motion  for  a  new  trial  was  argued  before  Justice 
Field,  of  the  United  States  Supreme  Court,  and  Judge 
Hoffman,  and  was  denied. 

In  re  Moore  (64  N.  C,  802),  the  chief  justice  says: 

■'I  declare  my  opinion  to  be,  that  the  privilege  of  the  writ  of 
habeas  corpus  has  not  been  suspended  by  the  action  of  his  excel- 
lency; that  the  governor  has  the  power,  under  the  constitution  and 
laws,  to  declare  a  county  to  be  in  a  state  of  insurrection,  to  take 
military  possession,  to  order  the  arrest  of  all  suspected  persons,  and 
to  do  all  things  necessary  to  suppress  the  Insurrection,  but  he  has 
no  power  to  disobey  the  writ  of  habeas  corpus,  or  to  order  the  trial 
of  any  citizen  otherwise  than  by  jury.  *  *  *  It  niay  be  that  the 
arrest  and  also  the  detention  of  the  prisoner  is  necessary  as  a  means 
to  suppress  the  insurrection.  But  I  cannot  yield  my  assent  to  the 
conclusion;  the  means  must  be  proper,  as  well  as  necessarj',  and 
the  detention  of  the  prisoner  as  a  military  prisoner  is  not  a  proper 
means,  for  it  violates  the  Declaration  of  Rights:  'The  privilege  of 
the  writ  of  habeas  corpus  shall  not  be  suspended.'  (Constitution, 
article  I,  section  21.) 

"This  is  an  express  provision  and  there  is  no  rule  of  construc- 
tion or  principle  of  constitutional  law  by  which  an  express  provision 
can  be  abrogated  and  made  of  no  force  by  an  implication  from  any 
other  provision  of  the  instrument." 


140  ROBERT    WILBUR    STEELE 

Upon  the  subject  of  martial  law  the  authorities  do  not 
appear  to  be  divided.  In  nearly  every  case  I  have  cited  the 
question  of  the  right  of  the  president  to  declare  a  commu- 
nity to  be  under  martial  law  was  under  consideration.  In 
the  case  Johnson  vs.  Duncan,  decided  in  the  year  1815,  the 
Supreme  Court  of  Louisiana  decided  that  the  military  com- 
mander had  no  authority  to  declare  and  enforce  martial  law, 
and  that  his  act  in  so  doing  was  illegal  and  void.  In  a  note 
to  the  case  is  the  following  : 

"The  doctrine  established  in  the  first  part  of  the  opinion  of  the 
court  in  the  above  case  is  corroborated  by  the  decision  of  the  District 
Court  of  the  United  States  for  the  Louisiana  district  in  the  case  of 
The  United  States  vs.  Jackson,  in  which  the  defendant,  having 
acted  in  opposition  to  it,  was  fined  $1,000.  In  Lamb's  case,  Judge 
Bay,  of  South  Carolina,  recognized  the  definition  of  martial  law 
given  by  this  court,  expressing  himself  thus:  'If  bj^  martial  law  is 
to  be  understood  that  dreadful  system,  the  law  of  arms,  which,  in 
former  times,  was  exercised  by  the  king  of  England  and  his  lieuten- 
ants, when  his  word  was  the  law,  and  his  will  the  power  by  which 
it  was  exercised,  I  have  no  hesitation  in  saying  that  such  a  monster 
could  not  exist  in  this  land  of  liberty  and  freedom.  The  political 
atmosphere  of  America  would  destroy  it  in  embryo.  It  was  against 
such  a  tyrannical  monster  that  we  triumphed  in  our  revolutionary 
conflict.  Our  fathers  sealed  the  contest  by  their  blood,  and  their 
posterity  will  never  permit  it  to  tarnish  our  soil  by  its  unhallowed 
feet,  or  harrow  up  the  feelings  of  our  gallant  sons  by  its  ghastly 
appearance.  All  our  civil  institutions  forbid  it,  and  the  manly 
hearts  of  our  countrymen  are  steeled  against  it.'  " 

This  case  was  reported  in  the  year  1816.  But  the  case, 
above  all  others,  which  settles,  until  reversed,  the  question 
of  the  powers  of  the  military,  is  that  of  ex  parte  Milligan 
(4  Wall,  2).  The  case  involved  the  right  of  a  military 
commission  to  try  a  citizen  of  the  state  of  Indiana  under  the 
act  of  congress  referred  to  herein.  The  opinion  was  written 
by  David  Davis,  the  associate,  the  friend,  the  appointee  of 
Lincoln.  It  is  so  logical,  so  patriotic  and  so  convincing  that 
I  cannot  conceive  of  a  condition  or  change  of  thought  that 
will  cause  its  reversal ;  and  it  should,  in  my  opinion,  be  a 
guide    for   all    courts — a    sure    and    safe   guide — which,    if 


THE    OPINION    IN    THE    MOVER   CASE  I4I 

followed,  will  protect  the  citizen  and  enforce  the  law.   Judge 
Davis  said,  speaking  of  the  bill  of  rights  : 

"These  securities  for  personal  liberty  thus  embodied  were  such 
as  wisdom  and  experience  had  demonstrated  to  be  necessary  for  the 
protection  of  those  accused  of  crime,  and  so  strong  was  the  sense  of 
the  country  of  their  importance  and  so  jealous  were  the  people  that 
these  rights,  highly  prized,  might  be  denied  them  by  implication, 
that  when  the  original  constitution  was  proposed  for  adoption  it 
encountered  severe  opposition ;  and,  but  for  the  belief  that  it  would 
be  so  amended  as  to  embrace  them,  it  would  never  have  been  rati- 
fied. Time  has  proven  the  discernment  of  our  ancestors;  for  even 
these  provisions,  expressed  in  such  plain  English  words  that  it 
would  seem  the  ingenuity  of  man  could  not  evade  them,  are  now, 
after  the  lapse  of  more  than  seventy  years,  sought  to  be  avoided. 
Those  great  and  good  men  foresaw  that  troublous  times  would 
arise  when  rulers  and  people  would  become  restive  under  restraint 
and  seek  by  sharp  and  decisive  measures  to  accomplish  ends  deemed 
just  and  proper  and  that  the  principles  of  constitutional  liberty 
would  be  imperiled  unless  established  by  irrepealable  law.  The 
history  of  the  world  had  taught  them  what  was  done  in  the  past 
might  be  attempted  in  the  future.  The  constitution  of  the  United 
States  is  a  law  for  rulers  and  people,  equally  in  war  and  in  peace, 
and  covers  with  the  shield  of  its  protection  all  classes  of  men,  at 
all  times  and  under  all  circumstances.  No  doctrine  involving  more 
pernicious  consequences  was  ever  invented  by  the  wit  of  man  than 
that  any  of  its  provisions  can  be  suspended  during  any  of  the  great 
exigencies  of  government.  Such  a  doctrine  leads  directly  to  anarchy 
or  despotism,  but  the  theory  of  necessity  on  which  it  is  based  is 
false;  for  the  government,  within  the  constitution,  has  all  the  powers 
granted  to  it  which  are  necessary  to  preserve  its  existence,  as  has 
been  happily  proved  by  the  result  of  the  great  effort  to  throw  off  its 
just  authority.     *     *     * 

"It  follows  from  what  has  been  said  on  this  subject  that  there 
are  occasions  when  martial  rule  can  be  properly  applied.  If,  in 
foreign  invasion  or  civil  war,  the  courts  are  actually  closed,  and  it 
is  impossible  to  administer  criminal  justice  according  to  law,  then, 
on  the  theater  of  active  military  operations,  where  war  prevails, 
there  is  a  necessity  to  furnish  a  substitute  for  the  civil  authority 
thus  overthrown,  to  preserve  the  safety  of  the  army  and  societv; 
and  as  no  power  is  left  but  the  military,  it  is  allowed  to  govern  by- 
martial  rule  until  the  laws  can  have  their  free  course.  As  necessity 
creates  the  rule,  so  it  limits  its  duration;  for,  if  this  government  is 
continued  after  the  courts  are  reinstated,  it  is  a  gross  usurpation  of 
power.  Martial  rule  can  never  exist  where  the  courts  are  open  and 
in  the  proper,  unobstructed  exercise  of  their  jurisdiction." 

In  another  place  Judge  Davis  says : 

"It  is  claimed  that  martial  law  covers  with  its  broad  mantle 
the    proceedings   of   this    military   commission.      The    proposition    is 


142  ROBERT  WILBUR  STEELE 

this:  That  in  the  time  of  war  the  commander  of  an  armed  force 
(if,  in  his  opinion,  the  exigencies  of  the  country  demand  it,  and  of 
which  he  is  to  judge)  has  the  power,  within  the  lines  of  his  mili- 
tary district,  to  suspend  all  civil  rights  and  their  remedies  and 
subject  citizens  as  well  as  soldiers  to  the  rule  of  his  will,  and  in 
the  exercise  of  his  lawful  authority  cannot  be  restrained  except  by 
his  superior  officer  or  the  president  of  the  United  States.  If  this 
position  is  sound  to  the  extent  claimed,  then  when  war  exists,  foreign 
or  domestic,  and  the  country  is  subdivided  into  military  departments 
for  mere  convenience,  the  commander  of  one  of  them  can,  if  he 
chooses,  within  his  limits,  on  the  plea  of  necessity,  with  the  approval 
of  the  executive,  substitute  military  force  for  and  to  the  exclusion 
of  the  laws,  and  punish  all  persons,  as  he  thinks  right  and  proper, 
without  fixed  or  certain  rules.  The  statement  of  this  proposition 
shows  its  importance ;  for,  if  true,  republican  government  is  a  fail- 
ure, and  there  is  an  end  of  liberty  regulated  by  law.  Martial  law 
established  on  such  a  basis  destroys  every  guarantee  of  the  consti- 
tution, and  effectually  renders  the  'military  independent  of  and 
superior  to  the  civil  power' — the  attempt  to  do  which  by  the  king  of 
Great  Britain  was  deemed  by  our  fathers  such  an  offense  that  they 
assigned  it  to  the  world  as  one  of  the  causes  which  impelled  them 
to  declare  their  independence.  Civil  liberty  and  this  kind  of  martial 
law  cannot  endure  together;  the  antagonism  is  irreconcilable;  and, 
in  the  conflict,  one  or  the  other  must  perish.  *  *  *  Wicked  men, 
ambitious  of  power,  with  hatred  of  liberty  and  contempt  of  law, 
may  fill  the  place  once  occupied  by  Washington  and  Lincoln;  and 
if  this  right  be  conceded,  and  the  calamities  of  war  again  befall  us, 
the  dangers  to  human  liberty  are  frightful  to  contemplate.  If  our 
fathers  had  failed  to  provide  for  just  such  a  contingency  they  would 
have  been  false  to  the  trust  reposed  in  them.  They  knew — the 
history  of  the  world  told  them — the  nation  they  were  founding,  be 
its  existence  short  or  long,  would  be  involved  in  war.  How  often 
or  how  long  continued  human  foresight  could  not  tell;  and  that 
unlimited  power,  wherever  lodged  at  such  a  time,  was  especially 
hazardous  to  freemen.  For  this  and  other  equally  weighty  reasons, 
they  secured  the  inheritance  they  had  fought  to  maintain  by  incor- 
porating in  a  written  constitution  the  safeguards  which  time  had 
proved  were  essential  to  its  preservation.  Not  one  of  these  safe- 
guards can  the  president,  or  congress,  or  the  judiciary  disturb, 
except  the  one  concerning  the  writ  of  habeas  corpus.     *     *     * 

"The  illustrious  men  who  framed  that  instrument  were  guard- 
ing the  foundations  of  civil  liberty  against  the  abuse  of  unlimited 
power;  they  were  full  of  wisdom  and  the  lessons  of  history  informed 
them  that  a  trial  by  an  established  court,  assisted  by  an  impartial 
jury,  was  the  only  sure  way  of  protecting  the  citizen  against  oppres- 
sion and  wrong.  Knowing  this,  they  limited  the  suspension  to  one 
great  right,  and  left  the  rest  to  remain  forever  inviolable.  But,  it 
is  insisted  that  the  safety  of  the  country  in  time  of  war  demands 
that  this  broad  claim  for  martial  law  shall  be  sustained.  If  this 
were  true,  it  could  well  be  said  that  a  country  preserved  at  the 
sacrifice  of  the  cardinal  principles  of  liberty  is  not  worth  the  cost 
of  preservation.     Happily  it  is  not  so." 


THE    OPINION    IN    THE    MOVER    CASE  I43 

It  seems  to  me  that  everything  has  been  said  that  can 
be  said,  and  that  the  expounders  of  the  constitution  have 
laid  out  a  path  that  leads  to  peace  and  security.  And  I 
have  quoted  from  these  authorities  for  the  purpose  of  dem- 
onstrating that  the  civil  liberty  of  these  great  men  and  the 
civil  liberty  of  Colorado  today  are  of  different  species. 

But  it  is  said  that  the  governor  has  greater  powers 
under  our  constitution  than  the  president  has  under  the 
national  constitution ;  that  because  he  is  given  power  to 
suppress  insurrection  and  repel  invasion,  power  sufficient  to 
accomplish  the  purpose  is  necessarily  implied ;  that  the 
executive  is  the  sole  judge  of  the  means  to  be  employed 
and  that  the  bill  of  rights  must  give  way  when  the  governor 
is  engaged  in  exercising  this  power.  It  was  because  of  the 
fear  that  the  guarantees  of  personal  liberty  would  be  denied 
by  implication  that  the  bill  of  rights  was  made  a  part  of 
our  constitution,  and  it  was  the  intention  of  the  people 
when  they  adopted  the  constitution  to  declare  their  rights 
in  such  plain  English  that  they  could  not  be  construed  away 
nor  frittered  away  by  implication  or  evasion.  The  author- 
ity is  overwhelming  that  the  position  of  the  governor  cannot 
be  sustained;  that  the  power  of  suspending  the  writ  of 
habeas  corpus  is  legislative  and  not  executive ;  that 
martial  law  can  only  prevail  in  places  where  the  civil 
law  is  overthrown  by  force,  and  that  it  exists  only 
so  long  as  it  is  necessary  to  reinstate  the  courts ;  that 
martial  law  cannot  prevail  where  the  courts  are  open 
and  exercising  their  functions;  that  the  judicial  department 
will  take  notice  whether  the  courts  are  open  or  have  been 
overthrown  by  superior  force.  This  court  has  not  under- 
taken to  declare  that  the  position  taken  by  the  governor  and 
his  special  counsel  is  correct,  but  has  said  that  the  right  of 
the  governor  to  declare  and  enforce  martial  law  and  to  sus- 
pend  the   privilege   of   the   writ   of   habeas   corpus   is   not 


144  ROBERT    WILBUR    STEELE 

involved.  The  court  would  have  sustained  the  governor, 
under  the  authorities,  if  it  were  possible  to  do  so;  but,  find- 
ing it  impossible  to  sustain  him  under  the  authorities,  it 
has  sustained  him  in  spite  of  them.  All  courts  are  in  duty 
bound  to  sustain  the  co-ordinate  departments  of  the  govern- 
ment when  they  can  be  sustained ;  and  I  should  sustain  the 
executive  department  if  any  doubt  lingered  in  my  mind  as 
to  the  right  of  the  head  of  that  department  to  exercise  the 
great  power  that  he  asserts.  But  I  believe  that  the  consti- 
tution has  been  "unnecessarily  assailed  and  rudely  violated" 
by  the  head  of  the  executive  department,  and  I  further 
believe  that  this  court  has  removed  the  landmarks  which 
our  fathers  have  set ;  and  my  duty  requires  me  to  withhold 
my  approval. 

This  leads  us  to  a  discussion  of  the  opinion  in  the  case. 
The  holding  of  the  court  that  the  respondent  is  not  required 
to  deny  the  allegations  of  the  petition  but  to  answer  to  the 
writ,  which  requires  him  to  show  by  what  authority  he 
detains  the  prisoner,  I  do  not  regard  as  very  important,  in 
view  of  the  disposition  made  of  the  case.  The  chief  justice 
of  the  United  States  in  the  Merryman  case  appears  to  have 
considered  the  averments  of  the  petition  in  deciding  the 
case ;  and  I  shall,  for  the  purposes  of  this,  consider  one  or 
two  facts  stated  in  the  petition  which  I  think  have  a  bearing 
upon  the  case.  The  petitioner  was  not  in  the  county  of  San 
Miguel  at  the  time  it  was  declared  to  be  in  a  state  of  insur- 
rection and  rebellion.  He  did  not  go  to  the  county  of  San 
Miguel  voluntarily,  but  was  taken  there  by  the  sheriff  upon 
a  warrant  charging  him  with  a  misdemeanor.  The  petition 
alleges  that  the  charge  was  unfounded,  and  that  it  was  made 
and  the  warrant  issued  for  the  purpose  of  taking  him  to  the 
county  of  San  Miguel  to  enable  the  military  authorities  to 
detain  him.  He  was  allowed  bail,  but  was,  on  the  following 
day,  arrested  by  the  military  officers.    If  it  be  true  that  such 


THE    OPINION    IN    THE    MOVER    CASE  I45 

acts    were   committed    in    this   case — and    we    are   precluded 

from  making  an  investigation  of  the  facts,  then  any  person 

in  any  part  of  the  state  can  be  carried  into  the  county  where 

it  is  alleged  an  insurrection  exists  and  kept  there  without 

bail  until   the  commanding  officer  chooses  to   release  him. 

This  was  done  in  Illinois  by  the  federal  officers,  and  the 

legality  of  the  arrest  was  passed  upon  by  the  Supreme  Court 

of  that  state  in  the  case  of  Johnson  vs.  Jones  (z|4  111.,  143). 

The  court  said : 

"It  is  a  fearful  power  that  is  claimed  for  the  government  by 
the  counsel  for  the  appellee,  and  one  which  no  free  government 
ought  to  possess.  Even  in  England,  in  the  latter  part  of  the  last 
century,  when  secret  political  societies  were  formed  hostile  to  the 
government  and  in  league  with  the  French  revolutionists  or  sup- 
posed to  be  so,  although  the  country  was  at  war  with  France,  yet, 
while  the  high  Tory  administration  of  Mr.  Pitt  arrested,  prosecuted 
and  punished  with  a  pitiless  vigor,  it  acted  only  through  the  ordi- 
nary agencies  of  the  civil  courts,  and  made  no  use  of  the  military 
arm  under  the  pretense  that  the  offending  persons  were  belligerents 
or  public  enemies.  If  this  plaintiff  was  guilty  of  the  charges  made 
in  the  plea  he  merited  arrest  and  a  severe  punishment,  but  he  should 
have  been  punished  in  conformity  to  law.  It  is  to  be  remembered 
that  the  question  before  us  is  one  of  power,  simply,  on  the  part  of 
the  executive,  and  not  of  deserving  on  the  part  of  the  plaintiff.  If 
the  president  could  rightfully  arrest  him  by  military  force  and 
confine  him  without  process  or  trial  to  a  fortress  in  the  harbor  of 
New  York,  he  could  do  the  same  thing  to  any  other  person  in  the 
state  of  Illinois,  however  innocent  of  crime.  *  *  *  As  no  charge 
is  made,  no  judicial  investigation  had,  it  is  left  entirely  to  the 
caprice  of  the  government  to  determine  what  persons  shall  be  seized. 
The  power  to  thus  arrest  being  once  conceded,  every  man  in  the 
state  *  *  *  vvould  hold  his  liberty  at  the  mercy  of  the  military 
officer  in  command." 

In  a  separate  opinion  by  Justice  Breese,  it  is  said : 

"I  cordially  concur  in  the  sentiment  that  the  constitution  of 
the  United  States  was  designed  by  its  framers,  and  has  been  hitherto 
so  understood  by  the  people,  to  be  the  same  protecting  instrument 
in  war  as  in  peace;  that  a  state  of  war  does  not  enlarge  the  powers 
of  any  one  department  of  the  government  established  by  it,  nor  has 
any  one  of  these  departments  any  right  to  urge  'necessity'  or  'extraor- 
dinary emergencies'  as  a  plea  for  the  usurpation  of  powers  not 
granted.  The  first  is  the  tyrant's  plea,  and  the  other  places  the 
dearest  rights  of  the  citizen  at  the  mercy  of  a  dominant  party,  who 
have  only  to  declare  the  'emergency,'  which  they  can  readily  create, 
pretexts  for  which  bad  men  are  keen  to  find  and  eager  to  act  upon." 


146  ROBERT    WILBUR    STEELE 

And  the  marshal  who  made  the  arrest  was  held  liable 
for  damages.  And  so  it  seems  to  me  that  when  one  alleges 
that  he  is  not  an  insurgent,  that  he  was  not  in  the  county 
where  the  insurrection  was  alleged  to  exist,  but  that  he  was 
carried  there  by  force  for  the  purpose  of  being  placed  in  the 
custody  of  military  authorities — conceding  everything  in  the 
opinion  to  be  a  correct  statement  of  the  law — there  is  power 
in  the  civil  authority  to  examine  the  question  and  determine 
whether  the  petitioner  is  in  fact  guilty. 

It  is  held  by  the  court  that  as  the  governor,  under  the 
constitution,  is  empowered  to  suppress  insurrection  or  repel 
invasion,  that  the  recitals  in  his  proclamation  that  an  insur- 
rection exists  cannot  be  controverted  because  it  becomes  his 
duty  to  determine  as  a  fact  when  a  condition  exists  that 
demands  the  exercise  of  his  power,  and  that  the  judicial 
department  cannot  substitute  its  judgment  for  that  of  the 
executive  department  in  matters  calling  for  the  exercise  of 
discretion.  As  I  have  before  stated,  I  do  not  regard  the 
proclamation  as  of  great  importance.  It  does  not  seem  to 
me  to  be  necessary  to  proclaim  an  insurrection  before  under- 
taking to  suppress  it,  and  I  am  satisfied  that  the  proclama- 
tion is  not  a  condition  precedent  to  the  exercise  of  the  power. 
An  insurrection  may  or  may  not  exist,  notwithstanding  the 
proclamation  of  the  governor;  as  an  insurrection  may  con- 
tinue long  after  the  governor  declares  it  to  have  been  sup- 
pressed, so  it  may  cease  long  before  his  declaration  of  peace. 
The  proclamation  may  determine  the  status  of  the  militia, 
and  may  be  necessary  for  the  purpose  of  ordering  them  to 
the  scene  of  insurrection ;  and  the  governor  has,  in  my 
opinion,  the  undoubted  power  to  call  out  the  militia  at  such 
time  to  enforce  such  laws  as  in  his  judgment  are  proper 
for  the  protection  of  persons  and  property ;  and  it  is  entirely 
probable  that  the  act  of  the  governor  in  calling  to  his  aid 
the  military  arm  of  the  government  cannot  be  questioned. 


THE    OPINION    IN    THE    MOVER    CASE  I47 

but  when  it  comes  to  superseding  the  civil  power  and  exer- 
cising martial  law,  to  disobeying  the  writ  of  habeas  corpus 
or  other  process  of  the  court,  to  detaining  citizens  upon  sus- 
picion, then  the  question  of  whether  an  insurrection  exists  is 
not  to  be  determined  by  the  governor's  proclamation.  If 
such  is  not  the  law,  then,  as  Justice  Breese  says,  it  "places 
the  dearest  rights  of  the  citizen  at  the  mercy  of  the  dominant 
party,  who  have  only  to  declare  the  'emergency,'  which  they 
can  readily  create,  pretext  for  which  bad  men  are  keen  to 
find  and  eager  to  act  upon." 

I  therefore  do  not  assent  to  the  doctrine  announced. 

The  doctrine  announced  in  the  other  parts  of  the  opin- 
ion I  regard  as  establishing  a  more  dangerous  precedent,  of 
more  far-reaching  consequences,  if  possible,  than  the  pre- 
ceding one.  And,  in  order  to  properly  discuss  that  branch 
of  the  case,  we  should  keep  constantly  before  us  the  words 
of  the  Supreme  Court  of  the  United  States : 

"The  constitution  *  *  *  is  a  law  for  rulers  and  people, 
equally  in  war  and  in  peace,  and  covers  with  the  shield  of  its  pro- 
tection all  classes  of  men,  at  all  times  and  under  all  circumstances. 
No  doctrine  involving  more  pernicious  consequences  was  ever 
invented  by  the  wit  of  man  than  that  any  of  its  provisions  can  be 
suspended  during  any  of  the  great  exigencies  of  government.  Such 
a  doctrine  leads  directly  to  anarchy  or  despotism,  but  the  theory  of 
necessity  on  which  it  is  based  is  false."     (4  Wall,  2.) 

The  court  then,  as  prefatory  to  a  discussion  of  ques- 
tions involving  various  provisions  of  the  constitution,  says 
that  "Laws  must  be  given  a  reasonable  construction  which, 
so  far  as  possible,  will  enable  the  end  thereby  sought  to  be 
attained.     So  with  the  constitution." 

The  sentence  is  rather  obscure.  If  the  court  means 
that  it  will  not  be  presumed  that  the  legislature  intends 
what  is  unreasonable,  then  I  agree  with  it;  but  if  it  means 
that  the  dearest  right  preserved  by  our  constitution — free- 
dom from  arbitrary  arrest  and  imprisonment — can  be  argued 
away,  as  impliedly  repealed  by  the  authority  given  to  the 


148  ROBERT    WILBUR    STEELE 

governor  to  execute  the   laws  and  suppress  insurrection,   I 

do   not   agree   with   it.      The   court   has    not   construed   the 

constitution — it  has  ignored  it;  and  the  result  is  that  it  has 

made  greater  inroads  on  the  constitution  than  it  intended, 

and  that  not  one  of  the  guarantees  of  personal  liberty  can 

now  be  enforced.    The  Supreme  Court  of  the  United  States, 

speaking  of  the  bill  of  rights,  says : 

"So  jealous  were  the  people  that  these  rights,  highly  prized, 
might  be  denied  them  by  implication,  that  when  the  original  consti- 
tution was  proposed  for  adoption  it  encountered  severe  opposition ; 
and,  but  for  the  belief  that  it  would  be  so  amended  as  to  embrace 
them,  it  would  never  have  been  ratified.  Time  has  proven  the 
discernment  of  our  ancestors ;  for  even  these  provisions,  expressed  in 
such  plain  English  words  that  it  would  seem  the  ingenuity  of  man 
could  not  evade  them,  are  now,  after  the  lapse  of  more  than  seventy 
years,  sought  to  be  avoided." 

The  court  then  proceeds  to  give  to  the  constitution 
what  it  terms  a  reasonable  construction.  After  declaring 
that  the  petitioner  can  be  restrained  of  his  liberty  without 
warrant  and  on  suspicion  only,  until  such  time  as  the  mili- 
tary authority  declares  the  insurrection  at  an  end,  it  says : 

"Nor  do  these  views  conflict  with  section  22  of  the  bill  of 
rights,  which  provides  that  the  military  shall  always  be  in  strict 
subordination  to  the  civil  power.  The  governor,  in  employing  the 
militia  to  suppress  an  insurrection,  is  merely  acting  in  his  capacity 
as  the  chief  civil  magistrate  of  the  state,  and,  although  exercising 
his  authority  conferred  by  the  law  through  the  aid  of  the  military 
under  his  command,  he  is  but  acting  in  a  civil  capacity.  In  other 
words,  he  is  but  exercising  the  civil  power  vested  in  him  by  law 
through  a  particular  means  which  the  state  has  provided  for  the 
protection  of  its  citizens." 

This  was  the  argument  advanced  by  Attorney  General 
Bates,  more  than  forty  years  ago,  but  it  has  not  found  its 
way  into  the  reported  decisions  of  the  courts.  When  the 
court  says  that  because  the  governor  is  the  head  of  the  exec- 
utive department  of  the  state,  when  he  takes  command 
of  the  military  forces  he  is  still  at  the  head  of  the  civil 
power,  and  that  the  section  of  the  bill  of  rights  that  declares 
"that  the  military  shall  always  be  in  strict  subordination  to 


THE    OPINION    IN    THE    MOVER    CASE  I49 

the  civil  power"  has  no  other  meaning  than  that  the  military 
shall  always  be  under  the  command  of  the  governor,  it  is 
simply  annulling  that  section  of  the  bill  of  rights.  The 
section  referred  to  must  have  some  meaning.  It  can  have 
no  meaning  if  it  is  construed  as  the  court  construes  it.  I 
think  it  has  a  meaning.  The  language  used  is  not  obscure 
or  ambiguous.  It  undoubtedly  means  that  the  civil  power 
shall  control  at  all  times,  in  war  and  in  peace.  The  Supreme 
Court  of  the  United  States  has  said  that  the  attempt  to  make 
the  military  independent  of,  and  superior  to,  the  civil  power 
by  the  king  of  Great  Britain  was  deemed  by  our  fathers 
such  an  offense  that  they  assigned  it  to  the  world  as  one  of 
the  causes  which  impelled  them  to  declare  their  independ- 
ence.    (4  Wall,  2.) 

Again,  the  court  says : 

"To  deny  the  right  of  the  militia  to  detain  those  whom  they 
arrest  while  engaged  in  suppressing  acts  of  violence  and  until  order 
is  restored  would  lead  to  the  most  absurd  results." 

This  sentence  inflicts  a  fatal  wound  upon  civil  liberty, 
suspends  indefinitely  the  privilege  of  the  writ  of  habeas 
corpus,  annuls  that  section  of  the  constitution  which  declares 
that  no  person  shall  be  deprived  of  liberty  without  due 
process  of  law,  and  characterizes  the  declaration  of  the 
Supreme  Court  of  the  United  States  as  an  absurdity.  I  say 
this  because  the  opinion  declares  that  the  governor  is  the 
sole  judge  of  the  conditions  which  impel  him  to  call  forth 
the  militia  and  to  withdraw  it,  and  of  the  necessity  to 
imprison  and  detain ;  and  this  without  regard  to  the  guilt 
or  innocence  of  the  person  imprisoned.  This  was  the  doc- 
trine the  Supreme  Court  had  in  mind  when  it  declared : 
"No  doctrine  involving  more  pernicious  consequences  was 
ever  invented  by  the  wit  of  man." 

A  Union  congress  declined  to  invest  the  beloved 
Lincoln  with  such  enormous  power,  and,  although  it  author- 


150  ROBERT    WILBUR    STEELE 

ized  the  suspension  of  the  privilege  of  habeas  corpus,  it 
declared  the  superiority  of  the  civil  power  by  requiring  the 
release  of  prisoners  unless  indictment  was  returned  within 
a  limited  time. 

Again,  the  court  says  : 

"If,  as  contended  by  counsel  for  petitioner,  the  military,  as  soon 
as  a  rioter  or  insurrectionist  is  arrested,  must  turn  him  over  to  the 
civil  authorities  of  the  county,  the  arrest  might,  and  in  many 
instances  would,  amount  to  a  mere  farce.  He  could  be  released  on 
bail  and  left  free  to  again  join  the  rioters  or  engage  in  aiding  and 
abetting  their  action,  and  if  again  arrested,  the  same  process  would 
have  to  be  repeated,  and  thus  the  action  of  the  military  would  be 
rendered  a  nullity." 

Expressed  otherwise,  the  statement  is  that  we  should 
deny  the  prisoner  one  constitutional  right  because,  unless 
we  do,  he  may  take  advantage  of  another.  Is  it  the  law  of 
this  land  that  one  who  has  committed  a  bailable  offense 
shall  not  be  admitted  to  bail  because  he  may  repeat  the 
offense?    I  think  not — I  know  it  is  not. 

Again,  the  court  says : 

"The  arrest  and  detention  of  an  insurrectionist  either  actually 
engaged  in  acts  of  violence  or  in  aiding  and  abetting  others  to 
commit  such  acts,  violates  none  of  his  constitutional  rights.  He  is 
not  tried  by  any  militarj'  court,  or  denied  the  right  of  trial  by  jur}'; 
neither  is  he  punished  for  violation  of  law,  nor  held  without  due 
process  of  law.  His  arrest  and  detention  in  such  circumstances  are 
merely  to  prevent  him  from  taking  part  or  aiding  a  continuation  of 
the  conditions  which  the  governor,  in  the  discharge  of  his  official 
duties  and  in  the  exercise  of  the  authority  conferred  by  law,  is 
endeavoring  to  suppress." 

I  know  of  no  authority  that  vests  in  the  governor  the 
power  to  arrest  one  who  he  may  think  will  commit  an 
offense.  No  such  power  is  granted  by  the  constitution  nor 
bestowed  by  statute.  The  courts  of  the  state  are  open  and 
in  the  unobstructed  performance  of  their  functions.  Most 
persons  would  regard  restraint  of  liberty  for  the  period 
of  nearly  ninety  days  as  a  punishment ;  and  when  the  court 
says  that  the  petitioner,  by  his  detention,  loses  none  of  his 


THE    OPINION    IN    THE    MOVER    CASE  I5I 

constitutional  rights,  it  ignores,  it  seems  to  me,  that  section 
of  the  constitution  which  provides  that  no  person  shall  be 
deprived  of  his  liberty  without  due  process  of  law.  For, 
suppose  it  should  transpire  that  the  petitioner  is  not  guilty 
of  any  offense,  would  not  his  imprisonment  without  charge 
and  for  the  purpose  of  preventing  him  from  committing  an 
offense  be  an  injustice?  The  court  has  presumed  that  this 
man  is  an  insurgent;  the  presumption  of  law  is  that  he  is 
innocent.  He  asserts  that  he  is  not  guilty,  and  no  one  has 
charged  that  he  is  guilty.  The  only  statement  made  which 
in  any  way  implicates  him  is  that  of  the  adjutant  general, 
who  says  that  he  became  convinced  by  inquiry  that  he  was 
the  leader  of  a  band  of  lawless  men.  Moyer  may  be  guilty 
of  the  most  heinous  offenses.  It  may  be  that  he  deserves  to 
linger  in  prison  the  remainder  of  his  natural  life.  But  he  is 
entitled  to  his  liberty  unless  some  one  in  proper  form  and 
before  a  proper  tribunal  charges  him  with  violation  of  the 
law.  But  the  court  says  he  is  held  by  due  process  of  law. 
Whatever  war  power  the  governor  may  have,  this  power  is 
not  due  process  of  law.  Justice  Paine,  of  the  Supreme  Court 
of  Wisconsin,  in  the  case  In  re  Kemp  (16  Wis.,  419),  says: 

"The  executive,  as  such,  can  only  execute  the  politics  of  the 
nation — that  is,  he  executes  the  laws.  Undoubtedly,  the  constitution 
and  laws  do  in  many  instances  trust  matters  to  the  discretion  of 
the  executive.  In  such  instances  no  other  department  can  control 
the  exercise  of  that  discretion,  but  all  are  bound  by  it.  But  the 
difficulty  in  applying  that  doctrine  in  the  manner  attempted  by  the 
attornev  general  is  that  the  constitution  and  the  laws  have  not 
entrusted  to  the  executive,  unless  in  cases  where  the  writ  of  habeas 
corpus  is  legally  suspended,  any  political  discretion  to  imprison  the 
people.  On  the  contrary,  that  matter  was  deemed  of  such  vital 
importance  that  the  people  regulated  it  in  the  fundamental  law  of 
their  politics,  and  provided  that  'no  person  shall  be  deprived  of  his 
life,  liberty  or  property  without  due  process  of  law.'  The  constitu- 
tion knows  no  'political'  process,  no  'political'  cause  of  imprison- 
ment. There  must  be  a  'process  of  law,'  a  legal  cause  of  restraint. 
And  the  power  to  determine  what  is  a  legal  imprisonment,  and  to 
discharge  from  any  that  is  illegal,  is,  except  when  the  writ  Is  sus- 
pended, a  power  conferred  on  the  judicial  department." 


1^2  ROBERT    WILBUR    STEELE 

Again  the  court  says : 

"If,  then,  the  military  may  resort  to  the  extreme  of  taking 
human  life  in  order  to  suppress  insurrection,  it  is  impossible  to 
imagine  upon  what  hypothesis  it  can  be  successfully  claimed  that 
the  milder  means  of  seizing  the  persons  of  those  participating  in  the 
insurrection  or  aiding  and  abetting  it  may  not  be  resorted  to." 

The  power  to  take  the  life  of  an  insurgent  does  not 
include  the  power  to  take  the  life  of  a  person  not  an  insur- 
gent. And,  if  that  be  true,  then  by  the  process  of  reasoning 
that  the  court  adopts,  if  the  military  authority  may  not  take 
the  life  of  one  not  an  insurgent,  they  may  not  imprison  a 
person  who  is  not  an  insurgent.  The  question  is,  may  the 
military  authorities,  when  a  county  is  declared  to  be  in  a 
state  of  rebellion,  arrest  any  person,  whether  guilty  or  inno- 
cent, and  detain  him  until  the  executive  declares  that  order 
has  been  restored*?  This  question  is  not  answered  by  the 
assertion  that  as  the  military  "may  resort  to  the  extreme  of 
taking  human  life  in  order  to  suppress  insurrection,  it  is 
impossible  to  imagine  upon  what  hypothesis  it  can  be  suc- 
cessfully claimed  that  the  milder  means  of  seizing  the 
persons  of  those  participating  in  the  insurrection  or  aiding 
and  abetting  it  may  not  be  resorted  to."  The  question  can 
be  answered  in  the  affirmative  in  no  other  way  than  by 
declaring  that  the  executive  has  the  power  to  suspend  the 
privilege  of  habeas  corpus,  or  by  declaring  that  martial  law 
prevails  whenever  the  executive  so  proclaims.  The  decision 
has  applied  the  articles  of  war  to  conditions  that  do  not 
justify  their  application.  Whatever  may  be  said  of  the 
deplorable  condition  in  San  Miguel  County  that  resulted 
in  foul  assassinations,  in  murder  and  in  plunder,  so  revolt- 
ing to  the  law-abiding  citizen,  these  conditions  were  past 
at  the  time  the  petitioner  was  taken  there.  The  civil  author- 
ities of  the  county,  with  the  aid  of  the  military,  had  full 
possession  and  control ;  and  if  the  petitioner  was  in  any  way 
implicated  in  the  commission  of  these  foul  crimes,  it  should 
have  been  so  charged. 


THE    OPINION    IN    THE    MOYER    CASE  I53 

The  court  then  says : 

"No  case  has  been  cited  where  the  precise  question  under  con- 
sideration was  directly  involved  and  determined,  but  in  cases  where 
the  courts  have  had  occasion  to  speak  of  the  authority  of  the  mili- 
tary to  suppress  insurrection  and  the  means  which  may  be  employed 
to  that  end,  it  has  been  stated  that  parties  engaged  in  riotous  con- 
duct render  themselves  liable  to  arrest  by  those  engaged  in  quell- 
ing it." 

Chancellor  Kent,  at  page  8  of  volume  2  of  his  Com- 
mentaries, says : 

"It  requires  more  than  ordinary  hardiness  and  audacity  of 
character  to  trample  down  principles  which  our  ancestors  cultivated 
with  reverence,  which  we  imbibed  in  our  early  education,  which 
recommend  themselves  to  the  judgment  of  the  world  by  their  truth 
and  simplicity,  and  which  are  constantly  placed  before  the  eyes  of 
the  people,  accompanied  with  the  imposing  force  and  solemnity  of  a 
constitutional  sanction." 

What  connection  there  is  between  the  right  of  a  mili- 
tary officer  to  arrest  a  person  on  suspicion  only  and  hold  him 
;yithout  preferring  any  charge  against  him,  because  he  fears 
he  may  commit  an  offense,  and  the  right  of  an  officer  to 
arrest  a  rioter  caught  red-handed,  I  cannot  comprehend. 
Although  it  is  true,  as  stated  by  the  court,  that  the  precise 
point  upon  which  the  decision  rests  has  never  been  deter- 
mined by  other  courts,  it  is  not  because  that  point  was  not 
presented  and  urged  by  counsel,  nor  because  the  opportunity 
for  so  deciding  was  not  afforded  the  judges;  and  it  must  be 
that  the  reason  the  point  has  not  been  sustained  by  some 
other  court  is  that  no  other  court  could  concede  to  the  exec- 
utive all  the  power  he  would  have  if  the  privilege  of  the 
writ  of  habeas  corpus  were  suspended  without  determining 
that  he  had  the  power  to  suspend  the  writ.  During  the 
great  rebellion,  when  millions  of  soldiers  were  in  the  field 
and  when  hundreds  of  persons  in  the  loyal  states  were  sus- 
pected of  actively  aiding  those  engaged  in  the  rebellion,  and 
arrested,  the  courts  might  have  held  that  the  necessity  for 
putting  down   the   rebellion   carried   with   it  the   power  to 


154  ROBERT  WILBUR  STEELE 

arrest  and  detain  suspected  persons,  notwithstanding  the 
guarantees  of  the  constitution,  but  not  one  of  them  did  so. 
There  is  no  dearth  of  authority  in  this  country  or  in  Eng- 
land directly  contrary  to  the  ruling  of  this  court. 

I  can  find  no  middle  ground  to  stand  upon ;  and  I 
most  certainly  cannot  assent  to  the  novel  doctrine  announced 
by  this  court.  If  one  may  be  restrained  of  his  liberty  with- 
out charge  being  preferred  against  him,  every  other  guar- 
antee of  the  constitution  may  be  denied  him.  For,  as  said 
by  the  Supreme  Court  of  Illinois : 

"It  is  undeniable,  if  the  government  have  the  right  to  arrest 
him  without  a  warrant  and  imprison  him  without  a  trial  or  charge 
of  any  criminal  offense,  it  had  an  equal  right  to  send  his  case  before 
a  court  martial  or  military  commission.  The  right  to  do  the  one 
necessarily  implies  the  right  to  do  the  other,  because  both  rest  on 
the  same  theory  of  power  to  be  exercised  by  the  government  in  time 
of  war.  If  it  was  lawful  to  arrest  and  imprison  the  plaintiff  without 
any  form  of  judicial  investigation,  it  would  certainly  have  been 
not  less  lawful  to  do  the  same  thing  upon  the  finding  and  sentence 
of  a  military  tribunal.  It  can  hardly  be  said  that  the  laws  of  war 
could  be  applied  to  the  plaintiff  for  the  purposes  of  punishment,  but 
not  for  the  purposes  of  trial."     (Johnson  vs.  Jones,  44  111.,  156.) 

The  constitutional  privileges  are  not,  in  the  nature  of 
things,  separable.  It  was  intended  by  our  fathers  that  all 
should  be  inviolable  except  one,  and  that  to  be  suspended 
by  the  legislature  only  in  case  of  great  emergency.  Martial 
law  exists  or  it  does  not  exist.  When  it  exists  there  is  no 
civil  law.  Martial  law  and  civil  law  cannot  exist  together. 
If  the  civil  law  can  enforce  one  guarantee,  it  can  enforce 
all.  If  the  civil  law  is  overthrown  it  is  powerless  to  enforce 
any  right.  When  martial  law  does  not  prevail,  unless  the 
privilege  of  the  writ  of  habeas  corpus  is  suspended,  every 
right  guaranteed  by  the  constitution  is  enforceable;  and  the 
constitution  is  violated,  rudely  violated,  when  one  is 
deprived  of  liberty  without  due  process  of  law. 

Habeas  corpus  is  a  proper  remedy  to  release  from  arbi- 
trary arrest,  and,  unless  its  privileges  have  been  suspended, 


THE    OPINION    IN    THE    MOYER   CASE  155 

one  is  not  subject  to  arrest  on  suspicion  merely,  and  deten- 
tion beyond  the  time  fixed  by  statute  for  return  to  the  writ. 
As  the  privilege  of  the  writ  has  not  been  suspended,  as  the 
courts  are  open,  as  martial  law  does  not  prevail,  and  as  no 
charge  has  been  preferred  against  the  petitioner,  he  should 
be  discharged. 

The  greatness  of  this  country  consists  in  being  able  to 
protect,  by  the  shield  of  its  constitution,  the  humble  and  the 
exalted,  the  pure  and  the  wicked.  We  gave  the  wretched 
Guiteau,  Prendergast  and  Czolgosz  trials  by  due  form  of 
law,  and  by  so  doing  we  strengthened  the  nation  at  home 
and  abroad.  Had  we  departed  from  the  principles  declared 
by  our  fathers,  we  should  have  lessened  the  liberty  of  every 
citizen  and  imperiled  the  title  to  all  property. 

When  we  deny  to  one,  however  wicked,  a  right  plainly 
guaranteed  by  the  constitution,  we  take  that  same  right  from 
everyone.  When  we  say  to  Moyer,  "You  must  stay  in 
prison  because,  if  we  discharge  you,  you  may  commit  a 
crime,"  we  say  that  to  every  other  citizen.  When  we  say 
to  one  governor,  "You  have  unlimited  and  arbitrary  power," 
we  clothe  future  governors  with  that  same  power.  We 
cannot  change  the  constitution  to  meet  conditions.  We 
cannot  deny  liberty  today  and  grant  it  tomorrow ;  we  cannot 
grant  it  to  those  theretofore  above  suspicion  and  deny  it  to 
those  suspected  of  crime ;  for  the  constitution  is  for  all  men 
— "for  the  favorite  at  court,  for  the  countryman  at  plow" — 
at  all  times  and  under  all  circumstances. 

We  cannot  sow  the  dragon's  teeth,  and  harvest  peace 
and  repose;  we  cannot  sow  the  wind  and  gather  the  restful 
calm. 

Our  fathers  came  here  as  exiles  from  a  tyrant  king. 
Their  birthright  of  liberty  was  denied  them  by  a  horde  of 
petty  tyrants  that  infested  the  land — sent  by  the  king  to 
loot,   to  plunder   and   to   oppress.     Arbitrary   arrests   were 


156  ROBERT  WILBUR  STEELE 

made;  and  judges,  aspiring  to  the  smile  of  the  prince, 
refused  by  "pitiful  evasions"  the  writ  of  habeas  corpus. 
Our  people  were  banished;  they  were  denied  trial  by  jury; 
they  were  deported  for  trial  for  pretended  offenses ;  and  they 
finally  resolved  to  suffer  wrong  no  more,  and  pledged  their 
lives,  their  property  and  their  sacred  honor  to  secure  the 
blessings  of  liberty  for  themselves  and  for  us,  their  children. 
But  if  the  law  is  as  this  court  has  declared,  then  our  vaunted 
priceless  heritage  is  a  sham,  and  our  fathers  stood  "between 
their  loved  homes  and  the  war's  desolation"  in  vain. 


CHAPTER  IX 

FREE  SPEECH  AND  A  FREE  PRESS 

"That  no  law  shall  be  passed  impairing  the  freedom  of  speech; 
that  every  person  shall  be  free  to  speak,  write  or  publish  whatever 
he  will  on  any  subject,  being  responsible  for  all  abuse  of  that 
liberty;  and  that  in  all  suits  and  prosecutions  for  libel  the  truth 
thereof  may  be  given  in  evidence,  and  the  jury,  under  the  direction 
of  the  court,  shall  determine  the  law  and  the  fact." — Colorado 
Constitution,  Bill  of  Rights,  section  10. 

"That  newspapers  sometimes  indulge  in  unwarranted  criticism 
of  the  courts  cannot  be  denied.  In  some  instances  they  construe 
liberty  of  the  press  as  a  license  to  engage  in  wholesale  abuse  of  the 
court,  but  these  instances  are  rare  and  do  not  warrant  a  departure 
from  the  well  settled  principles  of  law  as  declared  by  congress  and 
construed  by  the  courts.  If  judges  charged  with  the  administration 
of  the  law  are  not  to  be  criticised  on  account  of  their  official  con- 
duct, the  liberty  of  the  press  is  abridged  and  the  rights  of  individ- 
uals are  imperiled." — Judge  Pritchard,  U.  S.  Circuit  Court  North 
Carolina,  July,  1904. 

"For  no  judge  and  no  court,  high  or  low,  is  beyond  the  reach 
of  public  and  individual  criticism." — Justice  Brewer,  when  judge  of 
the  Supreme  Court  of  Kansas. 

"I  do  not  contend  that  one  who  in  open  court  charges  a  judge 
with  corruption  may  justify  his  act  by  proof  that  his  charge  is  true, 
but  I  do  contend  that  when  the  alleged  contempt  consists  of  the 
publication  in  a  newspaper  of  defamatory  accusations,  such  publica- 
tion is  not  contempt,  but  libel,  and  that  the  constitution  intervenes 
to  prevent  that  offense  from  being  tried  by  judges  who  are  smarting 
under  a  sense  of  injury;  and  that  when  a  court  takes  cognizance  of 
a  newspaper  libel,  either  directly  or  remotely  connected  with  a 
pending  case,  upon  the  ground  that  the  publication  was  calculated 
and  intended  to  influence  its  action,  it  ought,  nevertheless,  to  prose- 
cute and  convict  only  for  the  contempt,  and  not  for  the  libel ;  and 
that,  so  far  as  the  libel  is  concerned,  the  truth  is  always  a  justifica- 
tion, no  matter  what  the  court  is  pleased  to  call  the  offense." — 
Justice  Robert  W.  Steele,  the  dissenting  opinion  in  the  Patterson 
case. 

In  the  latter  part  of  the  year  1905  there  came  into  the 
Supreme  Court  of  Colorado  a  case  which  was,  in  its  prac- 
tical effect  if  not  in  its  legal  significance,  an  arraignment 
of  the  newspapers  of  Colorado.  Primarily  an  action  for 
contempt  against  the  News-Times  Publishing  Company  and 


158  ROBERT    WILBUR    STEELE 

former  Senator  Thomas  M.  Patterson,  it  involved  in  its 
discussion  and  its  decision  the  constitutional  right  of  free 
speech,  the  privilege  of  the  public  newspaper  to  criticise 
public  officials,  and  in  a  measure  the  entire  subject  of  the 
rights,  the  duties  and  the  relations  of  newspapers,  their 
editors  and  proprietors,  toward  the  courts,  the  government 
and  the  people  of  the  state. 

An  opinion  had  been  prevalent  for  some  time  among 
the  people  that  the  average  daily  newspaper  was  to  be 
counted  among  the  forces  of  disorder  and  lawlessness,  and 
this  opinion  had  been  strengthened  by  glaring  examples  of 
sensationalism  and  partisanship  on  the  part  of  some  news- 
papers and  also  by  earnest  efforts  on  the  part  of  those  who 
had  personal  reasons  for  shunning  the  light  of  newspaper 
publicity.  Yet  it  is  easy  to  show  that  the  newspapers  of 
that  time  were  in  far  greater  danger  of  becoming  the  con- 
trolled organs  of  machine  politicians  and  of  the  great  finan- 
cial and  corporate  interests  than  they  were  of  catering  to 
the  passions  of  the  mob  and  aiding  the  forces  of  anarchy. 

It  is  a  long  step  in  human  progress  from  Benjamin 
Franklin's  "letters"  and  his  hand  press  to  the  complicated 
typesetting  machines  and  the  web  perfecting  presses  that 
turn  out  many-paged  and  many-colored  newspapers,  a  thou- 
sand copies  in  a  single  minute.  To  start  or  to  conduct  a 
newspaper  in  modern  days  requires  much  more  than  an 
ardent  desire  and  a  few  dollars.  A  linotype  machine  costs 
$3,500.  A  perfecting  press  represents  an  investment  of 
$20,000  or  more,  in  addition  to  the  expensive  electrical 
equipment  necessary  to  supply  motive  power.  Even  tht 
reporter  writes  with  a  hundred-dollar  typewriter  instead  of 
with  a  five-cent  lead  pencil.  And  that  is  far  from  being  all 
the  difference  between  the  old  and  the  new.  A  nose  for 
news  and  a  pair  of  shears  still  have  their  important  place  in 
newspaper  work,  but  a  real  daily  newspaper  has  to  have  the 


FREE  SPEECH  AND  A  FREE  PRESS  I59 

service  of  the  great  co-operative  news  gathering  association, 
and  that  is  a  matter  not  merely  of  a  regular  payment  of  a 
large  amount  of  money,  but  also  of  a  right  of  membership 
that  is  jealously  guarded  and  exorbitantly  valued. 

The  modern  newspaper  is  enormously  capitalized.  It 
is  not,  and  it  cannot  be,  a  free  press  in  the  sense  of  being 
an  open  medium  for  the  expression  of  the  opinions  of  every- 
one that  has  a  craving  to  sound  his  thoughts  in  the  public 
ear.  Its  freedom  is  limited  by  the  sources  of  its  capital  and 
of  its  income,  by  its  stockholders  on  one  side  and  by  its 
advertisers  or  its  subsidizers — if  it  has  any — on  the  other. 
Under  such  conditions  there  is  comparatively  small  danger 
that  the  modern  nev/spaper  will  become  the  vehicle  of  such 
folly,  vituperation  and  ailarchism  as  characterized  the  pla- 
card, the  pamphlet  and  the  cheaply  produced  newspaper  of 
early  days.  There  is  far  greater  danger  that  it  may  become 
allied  with  the  forces  of  inordinate  wealth  and  special  privi- 
lege. A  daily  newspaper  in  an  American  city  of  a  hundred 
thousand  people  may  easily  represent  a  capitalized  invest- 
ment of  a  half  million  dollars.  Almost  inevitably  it  must 
be  a  defender  of  law  and  order  and  an  advocate  of  the 
rights  of  property,  for  it  belongs  in  the  ranks  of  moderate 
wealth,  law  and  order  are  a  necessity  for  its  own  business, 
and  the  rights  of  property  are  its  own  rights. 

That  the  modern  newspaper  has  been  the  center  of  a 
great  struggle  for  its  possession  and  control  everyone  knows 
who  knows  anything  about  the  inside  of  newspaper  work  in 
recent  years.  On  one  side  a  persistent  effort  has  been  made 
to  subjugate  the  newspaper  to  the  forces  of  machine  politics. 
Public  advertisements,  such  as  tax  lists,  election  notices 
and  lists  of  nominations,  paving  and  sewer  notices,  financial 
statements,  laws  and  ordinances  proposed  or  passed,  and 
other  similar  forms  of  publicity,  controlled  by  political 
machines,  have  been  used  to  whip  newspapers  into  line  for 


l60  ROBERT  WILBUR  STEELE 

partisan  uses.  Laws  have  been  passed,  nominally  in  the 
interest  of  non-partisanship,  by  which  partisan  loyalty  was 
made  the  qualification  for  public  advertising. 

From  another  side  there  has  been  in  many  cases  a 
strong  and  purposeful  effort  to  bring  the  newspapers  under 
the  control  of  large  business  interests  and  to  make  them  the 
voice,  not  of  public  opinion,  but  of  special  interests,  and  the 
methods  by  which  this  purpose  was  forwarded  have  ranged 
from  outright  purchase,  through  innumerable  forms  of  sub- 
sidies, loans  and  contributions. 

In  general,  the  American  newspaper  has  resisted  these 
attempts  at  its  subjugation  to  a  surprising  degree,  but  the 
reason  for  this  is  a  very  simple  matter  of  business.  Inas- 
much as  its  success  is  dependent  upon  the  favor  with  which 
it  is  received  by  the  public,  it  must  represent  the  opinions 
and  the  desires  of  at  least  a  considerable  portion  of  the 
people  of  the  community  in  which  it  circulates.  If  there 
ever  was  a  time  when  the  average  reader  was  willing  to 
accept  a  newspaper  statement  as  authoritative,  without  con- 
sideration of  the  personal  source  of  the  utterance  or  the 
motives  that  lay  back  of  it,  that  time  is  long  past.  The 
average  newspaper  reader  of  today  is  both  skeptical  and 
critical,  and,  with  all  due  credit  to  the  "power  of  the  press," 
which  is  undeniably  great,  the  supreme  skill  of  the  modern 
editor  lies  in  interpretation  and  not  in  prophecy.  The 
modern  newspaper  reader  does  not  want  to  be  told  what  he 
ought  to  think,  but  what  he  already  thinks.  The  newspaper 
that  seems  to  have  the  strongest  influence  is  merely  the  one 
that  has  the  greatest  skill  in  forecasting  what  the  people 
are  going  to  think  and  to  do,  and  in  agreeing  with  them,  in 
advance. 

The  modern  newspaper  is  not  unpurchasable  in  the 
sense  that  its  material  possessions  cannot  be  bought.  Com- 
pany stock,  name,  press,  typesetting  machines.  Associated 


FREE  SPEECH  AND  A  FREE  PRESS  l6l 

Press  membership  and  all  the  minor  items  of  its  inventory 
may  be  sold.  But  the  good  will  of  the  public  cannot  be 
sold  or  transferred,  except  in  a  minor  and  limited  degree ; 
for  the  good  will  and  confidence  of  the  people  are  depend- 
ent upon  the  skill  and  fidelity  with  which  the  directors  of 
a  newspaper  are  able  to  discern  and  to  express  and  to  pro- 
mote the  wishes  and  the  opinions  and  the  interests,  not  of 
their  owners,  not  directly  and  primarily  of  their  advertisers, 
but  of  their  readers. 

The  modern  newspaper  is  unpurchasable,  not  because 
of  any  superior  virtue  of  its  owners  and  editors  above  their 
fellow  men,  but  because  the  power  of  the  modern  newspaper 
is  not  inherent  in  a  material  instrument  and  machine  that 
can  be  transferred  from  one  ownership  to  another  to  serve 
the  selfish  purpose  of  its  temporary  possessor  or  master. 

If  such  be  the  case — if  the  modern  newspaper,  save 
for  rare  exceptions,  is  inseparably  bound  in  its  interests 
with  the  forces  of  law  and  order  and  to  the  rights  of  prop- 
erty ;  if  it  is  far  more  seriously  threatened  by  the  control 
of  wealth  and  privilege  than  by  the  passions  of  the  mob ; 
and  if  it  retains  through  the  inevitable  circumstances  of  its 
business  existence  the  confidence  of  a  large  portion  of  the 
people  and  thereby  serves  its  legitimate  function  as  a  voice 
of  public  sentiment — its  constitutional  liberties  ought  not 
to  be  abridged.  The  power  of  the  press,  as  a  factor  in 
business,  politics  and  government,  has  increased  with  the 
passing  years ;  but  in  the  exercise  of  that  power  it  is  the 
people,  rather  than  the  public  officials,  or  the  great  corpora- 
tions, or  the  political  bosses,  who  need  additional  safeguards. 
The  recognition  of  this  need  has  brought  the  recent  require- 
ment of  a  periodic  statement  of  owners,  editors  and  bond- 
holders as  a  condition  of  second  class  mail  privileges. 

In  the  case  against  the  News-Times  and  Senator  Pat- 
terson questions  of  constitutional  right,  of  the  liberties  of 


l62  ROBERT    WILBUR    STEELE 

the  people,  and  broad  and  far-reaching  principles  of  public 
policy  were  involved,  and  it  is  for  that  reason  that  Justice 
Steele's  dissenting  opinion  in  this  case  deserves  to  rank  with 
such  a  fundamental  argument  for  liberty  as  was  presented 
in  the  Moyer  case.  The  right  of  free  speech  and  of  a  free 
press  must  always  remain  as  a  priceless  instrument  and 
safeguard  of  liberty,  and  a  great  judge  could  render  but 
few  services  of  greater  importance  than  to  perceive  when 
this  right  was  impaired  or  endangered,  and  to  set  himself 
resolutely  to  its  defense. 

In  its  decision  the  Supreme  Court  ruled  that  the  articles 
and  cartoons  constituted  constructive  contempt,  that  the 
offense  consisted  in  the  publication  of  such  matter,  and  that 
it  was  entirely  immaterial  whether  the  matter  published  was 
true  or  false.  It  should  be  noted  in  passing  that  the  use 
of  the  word  "contempt"  in  this  connection  is  both  unfortu- 
nate and  misleading  to  the  ordinary  reader.  Even  the 
honorable  judges  of  many  courts  seem  to  have  found  it 
hard  to  understand  that  personal  depreciation  of  their 
ability,  their  wisdom  or  their  integrity  is  not  an  offense  that 
they  have  a  right  to  punish.  A  judge  as  an  individual  may 
be  utterly  contemptible,  and  every  honest  citizen  may  feel 
for  him  that  contempt  which  he  merits  without  coming 
under  any  prohibition  of  the  law.  A  citizen  may  even 
cherish,  if  he  please,  a  profound  and  utter  contempt  of  a 
judge  who  is  wholly  unworthy  of  such  disesteem,  without 
incurring  any  legal  penalty.  Furthermore,  a  citizen  has 
the  same  right  to  express  his  disapproval  of  a  judge,  by 
word  of  mouth  or  by  publication  in  a  newspaper  or  else- 
where, that  he  has  to  express  his  contempt  of  any  citizen, 
or  of  any  public  official,  subject  to  the  law  of  libel  and 
subject  to  the  further  condition  that  he  shall  not  interfere 
with  the  course  of  justice  in  the  conduct  of  the  courts.  That 
freedom  of  speech  and  of  writing  is  a  constitutional  right. 


FREE  SPEECH  AND  A  FREE  PRESS  163 

guaranteed  to  him  by  the  constitutions  of  the  nation  and 
the  state,  and  committed  to  the  keeping  of  the  judicial 
department  together  with  other  rights  that  constitute  the 
written  charter  of  liberty. 

"Contempt,"  as  a  crime  against  the  courts,  involving 
punishment  by  fine  or  imprisonment,  is  an  interference  with 
the  course  of  justice — that  and  nothing  else.  Primarily  it 
is  an  act  committed  in  the  presence  of  the  court  tending  to 
disturb  its  proceedings,  to  weaken  its  authorit)'  or  to  affect 
its  decisions ;  or  a  disobedience  to  its  rules,  orders  or  proc- 
esses. Secondarily  it  is  such  an  act,  wherever  committed, 
as  will  interfere  with  the  free  and  impartial  acts  and  judg- 
ments of  the  courts,  and  this  secondary  contempt  is  what 
the  lawyers  call  "constructive  contempt."  A  judge,  as  a 
judge,  properly  comes  within  the  protection  of  contempt 
proceedings,  for  he  is  a  part  of  the  machinery  of  the  law, 
and  an  interference  with  him  when  acting  officially  is  an 
interference  with  the  course  of  justice.  The  judge  as  an 
individual  or  as  a  political  partisan  or  candidate  does  not 
properly  stand  within  the  scope  of  that  protection.  The 
power  to  punish  for  contempt  is  given  to  the  judge  in  order 
to  enforce  his  official  authority  and  to  prevent  interference 
with  the  course  of  justice,  and  the  judge  has  no  more  right 
to  use  that  power  to  salve  his  wounded  self-love,  or  to  pro- 
mote partisan  advantage,  or  to  protect  himself  from  per- 
sonal or  political  criticism,  or  to  serve  any  other  personal 
and  selfish  interest,  than  he  has  to  send  his  enemy  to  the 
gallows  for  cause  of  personal  hatred  or  to  appropriate  the 
furnishings  of  the  courtroom  to  his  private  use. 

There  is  no  dispute  about  these  principles,  for  they  are 
universally  acknowledged,  at  least  in  theory.  But  construc- 
tive contempt,  which  is  to  say  a  secondary  and  indirect 
interference  with  the  course  of  justice,  covers  a  vast  field 
of  doubtful  and  debatable  ground,  and  it  is  in  that  field 


164  ROBERT  WILBUR  STEELE 

that  the  decision  in  the  Patterson  case  is  to  be  located.  The 
majority  opinion  in  that  case,  which  is  the  decision  of  the 
court,  holds  that  the  publication  of  certain  articles  and 
cartoons  published  in  the  Times  and  the  News  in  the  year 
1905  constituted  an  interference  with  the  court,  and  that  the 
truth  of  those  articles  could  not  be  alleged  as  a  justification 
for  such  interference.  Upon  the  law  and  the  facts  that 
decision  stands  as  the  supreme  legal  authority  in  this  state, 
and  the  Supreme  Court  of  the  United  States  has  upheld  the 
right  of  this  court  to  act  within  its  jurisdiction  in  this  mat- 
ter. The  view  of  the  case  from  the  opposite  side  is  fully 
and  most  ably  set  forth  in  the  dissenting  opinion  of  Justice 
Robert  W,  Steele,  which  is  printed  in  full  as  the  following 
chapter  of  this  book.  There  is  nothing  that  can  be  added 
to  its  clear  exposition  of  the  legal  and  constitutional  prin- 
ciples involved,  to  the  weight  of  authorities  cited  or  to  the 
powerful  and  illuminating  exposition  of  the  public  interests 
concerned. 

The  student  and  historian  of  current  events  may  well 
consider  the  Patterson  case  in  a  wider  light  than  is  proper 
or  convenient  for  the  lawyer  or  the  judge.  It  would  not 
be  justifiable  to  assert  as  a  fact  what  was  believed  by  many 
at  that  time,  that  the  contempt  proceedings  against  Senator 
Patterson  were  the  result  of  a  deliberate  purpose  to  punish 
him  for  his  partisan  activities,  or  that  they  represented  an 
intentional  step  toward  fixing  the  control  of  a  group  of 
large  corporations  upon  the  newspapers  as  a  part  of  a  great 
conspiracy  to  seize  and  hold  the  government.  It  is  a  fact 
that  there  has  been  manifested  a  tendency,  nation-wide  in 
its  extent,  to  commercialize  and  to  control  the  great  daily 
newspapers  by  large  and  powerful  special  interests,  and  in 
particular  by  the  public  utility  corporations,  and  the  full 
significance  of  the  Patterson  case  cannot  be  understood 
except  in  this  connection. 


FREE    SPEECH    AND    A    FREE    PRESS  165 

It  is  true,  further,  that  the  Patterson  case,  in  the  criti- 
cisms to  which  objection  was  made,  and  in  the  opinions 
rendered  by  the  majority  and  the  minority  of  the  court,  was 
the  outgrowth  of  other  controversies,  mainly  partisan  as 
well  as  political  in  their  nature.  In  his  formal  answer  to 
the  charge  of  contempt,  which  will  be  found  on  page  283 
et  seq.  of  volume  35  of  the  Colorado  Reports,  Senator 
Patterson  avers  that  a  large  number  of  public  utility  and 
industrial  corporations,  specified  by  name,  with  the  mine 
owners'  association  of  Cripple  Creek,  determined  through 
their  agents  and  representatives  to  secure  the  renomination 
and  re-election  of  Governor  Peabody,  in  order  that  they 
might,  among  other  inducements,  secure  from  him  the  nomi- 
nation of  two  Supreme  judges  whom  the  governor  was 
authorized  to  appoint,  to  the  end  that  the  utility  corpora- 
tions might  obtain  decisions  from  the  Supreme  Court  con- 
firming, extending  and  securing  to  them  immensely  valuable 
franchises,  and  that  the  railroad  and  other  corporations 
might  obtain  decisions  favorable  to  them  in  the  many  cases 
in  which  they  were  being  constantly  involved ;  that  the  said 
Peabody  and  the  said  agents  and  representatives  of  said 
corporations  entered  into  a  contract  and  agreement  that  if 
he  should  be  renominated  and  re-elected  through  and  by  the 
agency  of  the  said  corporations  and  the  money  they  might 
expend  therefor  he  would  permit  them  to  name  the  persons 
for  the  two  judgeships.  On  information  and  belief  he  fur- 
ther averred  that  these  corporations  contributed  $40,000  to 
secure  the  renomination  of  Peabody,  and  that  they  contrib- 
uted $200,000  to  secure  his  re-election ;  that  after  Peabody 
had  been  defeated  in  the  election  these  corporations  under- 
took to  induce  the  legislature  to  change  the  returns  so  as  to 
show  the  election  of  Peabody;  that  the  supervision  of  the 
general  election  of  November,  1904,  by  the  Supreme  Court, 
was  a  part  of  this  corporation  conspiracy,  as  was  the  further 


l66  ROBERT    WILBUR    STEELE 

direction  of  that  court  regulating  the  canvassing  of  the 
returns ;  and  that  the  Adams-Peabody  contest  in  the  legis- 
lature, and  the  final  arrangement  by  which  the  lieutenant 
governor  became  acting  governor,  and  the  appointment  of 
two  judges  of  the  Supreme  Court,  were  a  part  of  the  devel- 
opments of  this  conspiracy. 

"And  the  respondent  avers  that  to  state  the  truth  is  not  and 
cannot  be  a  criminal  contempt  of  this  honorable  court,  and  he  avers 
upon  information  and  belief  that  the  allegations  and  statements  in 
the  said  published  articles  for  which  he  is  arraigned,  omitting  the 
innuendoes  inserted  therein,  in  the  information,  by  the  attorne}' 
general,  are  true,  and  this  respondent  especially  sets  up  and  claims, 
under  the  constitution  of  the  United  States  and  under  the  constitu- 
tion and  laws  of  the  state  of  Colorado,  the  right  and  privilege  of 
introducing  witnesses  to  prove  the  truth  of  such  allegations,  aver- 
ments and  statements  in  said  published  articles  contained,  and  of 
the  things  set  up  herein  as  his  justification  and  defense.  All  of 
which  matters  and  things  hereinabove  contained  this  respondent 
stands  ready  to  maintain  and  prove." 

The  Moyer  case,  involving  the  basic  right  of  personal 
liberty ;  the  Adams-Peabody  controversy ;  the  then  pending 
matter  of  the  right  of  cities  to  local  self-government;  the 
assumption  of  judicial  control  of  state  elections;  the  domi- 
nation of  the  state  government  by  the  system  of  machine 
politics  through  which  the  bosses  of  the  political  machine 
nominated,  elected  and  in  large  measure  controlled  all 
branches  of  the  state  government,  executive,  judicial  and 
legislative — formed  the  subject  matter  with  which  Senator 
Patterson  flayed  those  justices  of  that  high  tribunal  who 
were  under  the  power  of  his  lash.  Much  of  that  criticism 
was  shocking  to  the  sober-minded  citizens  of  the  state, 
regardless  of  its  truth  or  falsity ;  some  of  it,  perhaps,  was 
libelous,  though  that  has  not  been  determined;  much  of  it 
was  constructively  contemptuous,  for  upon  that  the  highest 
legal  authority  of  the  state  has  recorded  its  formal  decision 
and  has  enforced  its  punishment  therefor  in  a  fine  of  one 
thousand  dollars.     But  the  decision  of  the  court,  however 


FREE    SPEECH    AND    A    FREE    PRESS  167 

great  its  authority  is  in  matters  of  law,  is  not  supreme  in 
matters  of  public  policy.  The  judges  say  what  the  law  is; 
but  the  people  make  both  the  law  and  the  judges,  provided 
always  that  the  American  system  of  popular  self-govern- 
ment by  the  will  of  the  majority  of  the  people  is  in  full 
force  and  effect. 

For  the  judge  who  acknowledges  his  commission  from 
the  people  and  not  from  the  machine,  who  invariably  holds 
his  official  conduct  to  the  standard  of  the  public  welfare, 
who. never  uses  his  official  authority  to  serve  the  ends  of 
partisan  advantage  or  selfish  interest,  who  is  untiringly 
vigilant  for  the  maintenance  of  every  safeguard  of  popular 
liberty  which  the  fathers  have  established,  and  who  is 
serenely  and  sincerely  conscious  of  his  own  integrity  of  act 
and  motive,  "constructive  contempt,"  as  a  method  of  protec- 
tion for  personal  or  official  dignity,  seems  but  a  poor  and 
shabby  cloak.  From  the  invulnerable  shield  of  his  integrity 
the  shafts  of  envy  and  malice  fall  broken  to  the  ground, 
while  the  weapons  of  partisan  calumny  only  rebound  to 
strike  down,  amid  the  popular  applause,  those  that  wield 
them. 

"The  truth  is  no  defense  in  a  proceeding  for  contempt 
against  the  publisher  of  a  newspaper  for  publishing  articles 
charging  a  court  or  the  judges  thereof  with  being  influenced 
by  corrupt  motives  in  their  actions  with  reference  to  a  pend- 
ing cause."  That  is  the  law,  for  the  judges  of  the  Supreme 
Court  of  Colorado  (Mr.  Justice  Steele  dissenting),  with 
full  authority,  have  so  ruled. 

And  the  people  of  the  state  of  Colorado  since  that 
decision  have  written  into  the  organic  law  of  the  state  both 
the  recall  of  judges  and  the  recall  of  judicial  decisions. 
And  that  also  is  the  Law. 


CHAPTER  X 

THE  OPINION   IN  THE  PATTERSON   CASE 

On  February  6,  1906,  the  Supreme  Court  of  Colorado 
handed  down  its  decision  in  the  case  against  the  News- 
Times  Publishing  Company  and  Thomas  M.  Patterson. 
This  opinion  was  written  by  Justice  Julius  C.  Gunter,  and 
it  was  approved  by  Justices  Gabbert,  Campbell,  Bailey, 
Maxwell  and  Goddard.  At  the  same  time  a  minority  opin- 
ion was  returned  by  Justice  Robert  W.  Steele.  Both  these 
opinions  are  to  be  found  in  volume  35  of  the  Colorado 
Reports,  beginning  on  page  253.  The  majority  opinion 
occupies  142  printed  pages,  and  its  principal  conclusions 
are  thus  summarized  in  that  volume: 

"7.  Articles  published  in  a  newspaper  of  general  circulation 
charging  the  Supreme  Court  and  certain  of  its  judges  with  having 
been  influenced  by  corrupt  motives  in  their  rulings  theretofore  made 
in  pending  causes,  and  that  they  would  be  so  influenced  in  the  final 
disposition  of  the  same,  constitute  criminal  constructive  contempt. 

"8.  In  a  proceeding  for  contempt  against  the  publisher  of  a 
newspaper  for  publishing  articles  charging  a  court  or  the  judges 
thereof  with  being  influenced  by  corrupt  motives  in  their  actions 
with  reference  to  a  pending  cause,  the  truth  of  the  publication  is  no 
defense.  Neither  is  it  a  defense  to  show  that  there  was  no  intent 
to  commit  contempt.  Nor  to  show  that  the  court  was  not  affected 
by  the  contemptuous  language." 

Justice  Steele's  dissenting  opinion  may  be  found  in 
the  same  volume,  beginning  on  page  395,  and  it  is  as  fol- 
lows : 

Mr.  Justice  Steele,  dissenting: 

The  court  has  punished  the  respondent  for  a  mere 
libel,  under  a  proceeding  for  contempt;  and  has  held  that 
the  truth  is  not  a  justification,  and  that,  when  the  truth  is 
pleaded  as  a  justification,  the  pleading  of  it  is  a  direct 
contempt  and  as  such  is  punishable  summarily.     To  do  this 


THE    OPINION    IN    THE    PATTERSON    CASE  169 

it  was  necessary  for  the  court  to  set  aside  acts  of  the  legis- 
lature and  to  hold  that  that  section  of  the  bill  of  rights 
which  declares  that  "every  person  shall  be  free  to  speak, 
write  or  publish  zohatever  he  zuill  on  any  subject,  being 
responsible  for  all  abuse  of  that  liberty;  and  that  in  all 
suits  and  prosecutions  for  libel,  the  truth  thereof  may  be 
given  in  evidence,  and  the  jury,  under  the  direction  of  the 
court,  shall  determine  the  law  and  the  fact,"  is  inapplicable. 
As  I  am  of  opinion  that  it  is  not  a  crime  in  this  state  to 
speak,  write  or  publish  the  truth  of  or  concerning  the  official 
conduct  of  public  officers,  I  must  dissent  from  the  judg- 
ment. 

The  respondent's  purpose  in  publishing  the  articles 
complained  of  is  briefly  stated  in  his  reply  to  the  question 
by  the  chief  justice  whether  he  had  anything  further  to  say 
why  the  judgment  of  the  court  should  not  be  pronounced. 
He  said : 

"I  feel,  if  your  honors  please,  that,  without  having  the  slightest 
idea  what  punishment  the  court  will  inflict,  under  the  circumstances 
of  this  very  peculiar  case  I  should  say  something  why  I  should  not 
be  punished  for  contempt. 

"Certain  articles  were  published  in  The  Neivs  and  T/ie  Times 
for  which  the  writing  or  publication,  or  both,  I  was  and  am  respon- 
sible. 

"The  chief  justice,  in  his  own  way,  saw  fit  to  initiate  contempt 
proceedings  by  reason  of  these  articles,  and  as  a  result  of  his  steps 
the  attorney  general  filed  this  information,  commanding  that  I 
should  show  cause  why  I  should  not  be  punished  for  contempt,  the 
allegations  in  the  information  being  that  these  articles  were  con- 
temptuous of  the  Supreme  Court  and  certain  of  its  judges. 

"This  court  can  rest  assured  that  when  that  information  and 
citation  were  served  upon  me  I  was  confronted  with  perhaps  as 
serious  a  situation  as  I  have  ever  been  face  to  face  with  in  all  the 
years  of  my  manhood.  I  have  felt,  if  the  court  pleases,  the  impor- 
tance of  maintaining  the  honor  and  dignity,  not  only  of  this  court, 
but  of  minor  courts,  as  keenly  and  as  sincerely  as  any  other  citizen 
of  the  commonwealth;  and  one  of  the  most  gratifying  episodes  in 
my  life  was  when  Mr.  Justice  Campbell,  now  upon  the  bench  to 
try  me,  but  a  few  years  ago  commended  me  in  the  warmest  terms 
for  the  respect  I  had  always  shown  to  courts  with  which  he  was 
associated,  whether  sitting  as  a  Jiisi  priiis  judge  or  as  a  member  of 
this  great  body. 


lyO  ROBERT    WILBUR    STEELE 

"I  want  to  say  to  the  court  that  I  realize  as  keenly  as  any  man 
in  the  United  States  the  importance  of  an  unsullied  judiciary,  and 
the  importance  of  that  judiciary  ever  maintaining  the  respect  and 
the  confidence  of  the  people,  for,  if  all  else  fails,  it  may  be  that 
the  people  of  this  country  must  depend  upon  the  justice,  the  integ- 
rity and  the  patriotic  spirit  of  our  highest  courts  to  preserve  the 
liberties  of  the  country. 

"But,  if  your  honors  please,  I  have  always  felt  that  there  should 
be  reciprocity  between  courts  and  the  people.  While  the  courts 
should  receive  the  respect  and  confidence  of  the  people,  there  is  a 
duty  devolving  upon  the  courts  to  ever  maintain  the  law  and  the 
integrity  of  the  constitution,  and  to  keep  within  the  limits  pre- 
scribed by  the  constitution  and  laws  of  the  state  and  the  country; 
and  in  every  one  of  their  judgments,  as  their  consciences  tell  them, 
to  do  the  very  right,  and  nothing  but  the  right.  If  these  relations 
exist  between  the  people  and  the  bar  upon  the  one  side  and  the 
courts  of  the  country  upon  the  other,  there  will  be  little  need  of 
contempt  proceedings,  and  there  will  be  little  provocation  for  criti- 
cism either  of  the  courts,  or  by  the  courts,  of  the  public  press. 

"So  far  as  these  articles  are  concerned,  I  want  to  say  that  I 
never  wrote  or  published  articles  in  my  life  the  justice  of  which  I 
was  more  sincerely  convinced  of;  not  only  convinced  of  the  justice 
was  I,  but  of  the  necessity  for  their  publication,  and  when  this 
citation  was  served  upon  me,  as  I  said,  I  was  confronted  with  the 
most  serious  situation  in  which  I  had  ever  found  m\'self  in  all  of 
either  my  public  or  my  private  life.  From  all  the  information  I 
could  obtain  after  careful  investigation — from  those  whose  word 
could  not  be  doubted — I  felt  that  whatever  was  in  those  articles 
was  justified,  and  the  question  was  then  up  to  me:  Shall  I,  to 
escape  the  wrath  of  the  court,  say  that  I  have  been  a  slanderer,  a 
libeler?  Shall  I  proclaim  to  the  public  that  I  am  infamous,  in  that 
I  falsely  charge  the  Supreme  Court  of  my  state  with  such  things  as 
are  supposed  to  be  contained  in  those  articles?  Or  should  I  do 
what  any  true  man  ought  to  do,  firmly  believing  that  he  spoke  the 
truth — say  that  he  had  spoken  the  truth  and  offer  to  establish  the 
verity  of  the  articles? 

"That,  mav  it  please  the  court,  was  the  reason  for  the  answer 
I  filed. 

"The  attorney  general  tells  the  court  that  this  court  should  not 
for  a  moment  sit  to  investigate  charges  against  its  membership.  I 
can  only  say,  if  your  honors  please,  that  is  the  most  stupendous 
indictment  that  can  be  framed  against  this  whole  doctrine  of  con- 
structive contempt;  or,  has  it  come  to  this  in  the  United  States,  that 
the  publisher  of  a  newspaper,  because  men  are  judges,  may  not 
speak  the  truth  of  them  as  to  their  official  actions,  except  at  the 
peril  of  confinement  in  the  com.mon  jail,  the  payment  of  heavy 
monetary  penalties,  or  both  ? 

"I  realize,  if  your  honors  please,  that  so  far  as  the  legislature 
of  this  state  is  concerned,  it  has  done  everything  in  its  power  to 
change  that  condition.  It  has  declared  what  shall  be  contempt,  and 
has   omitted    ever} thing    with    reference    to   constructive    contempt; 


THE    OPINION    IN    THE    PATTERSON    CASE  I7I 

therefore,  so  far  as  the  legislature  is  concerned,  it  has  eliminated 
proceedings  in  constructive  contempt  from  the  powers  of  the  court. 
The  legislature  has  further  provided  for  answers  in  contempt  pro- 
ceedings, for  investigations,  for  juries,  has  fixed  a  limit  to  the 
power  of  the  court  in  assessing  punishments  for  contempts,  and  if 
constructive  contempt  is  to  be  maintained,  as  it  has  been  maintained 
by  this  court,  it  can  simply  mean — and  I  speak  it  in  a  thoroughly 
impersonal  way,  so  far  as  the  membership  of  this  court  is  concerned, 
I  speak  it  as  though  I  were  addressing  an  impartial  jury  with  no 
duty  devolving  upon  its  membership  except  to  find  and  declare  the 
truth — if  this  is  to  be  maintained  it  simply  means  that  we  have  in 
each  of  the  states  of  this  Union  a  chosen  bod\'  of  men  who  may 
commit  any  crime,  who  may  falsify  justice,  who  may  defy  constitu- 
tions and  spit  upon  laws,  and  yet  no  man  dare  make  known  the  fact. 

"So  far  as  I  am  concerned,  if  the  court  please,  I  am  unwilling 
to  be  bound  by  such  a  system,  and,  therefore,  if  no  other  result  is 
to  come  from  these  proceedings  beyond  my  own  punishment  than 
the  arousing  of  the  public  to  the  danger  of  such  a  power  in  the 
hands  of  any  body  of  men,  a  great  good  will  have  been  accom- 
plished; more,  perhaps,  than  is  necessary  to  compensate  for  what  I 
may  suifer.  And  I  only  desire  to  say,  further,  before  I  sit  down, 
that  no  matter  what  penaltj'  the  court  maj-  inflict,  from  this  time 
forward  I  will  devote  myself — by  constitutional  amendment  if  nec- 
essary, and  by  the  decisions  of  the  court  it  has  become  necessary — 
to  deprive  every  man  and  every  body  of  men  of  such  tyrannical 
power,  of  such  unjust  and  dangerous  prerogative,  of  the  ability  to 
say  to  publishers  of  newspapers:  'While  about  everybody  else  you 
may  speak  the  truth,  no  matter  what  our  offenses  may  be,  you  speak 
the  truth  with  the  open  door  of  the  jail  staring  you  in  the  face,  or 
the  depletion  of  what  you  may  possess  of  this  world's  goods,  and 
probably  of  both.' 

"If  the  court  please,  I  am  now  ready  to  receive  the  judgment  of 
the  court." 

The  opinion  of  my  brother  Gunter,  which,  I  am 
pleased  to  note,  is  based  upon  the  doctrine  of  stare  decisis, 
rather  than  his  own  opinion,  declares :  First — That  an  affi- 
davit is  not  essential  to  the  jurisdiction  of  the  court  in  cases 
of  constructive  contempt.  Second — That  the  offense  of  con- 
structive contempt  was  committed  by  the  respondent  by 
publishing  the  articles  set  out  in  the  information  and  that 
a  direct  contempt  was  committed  by  filing  the  answer. 
Third — That  it  is  immaterial  whether  the  articles  or  the 
averments  of  the  answer  were  true  or  false. 

I  shall  discuss  these  matters  in  their  order,  and  shall 
endeavor  to  demonstrate  that  the  court,  instead  of  announc- 


172  ROBERT    WILBUR    STEELE 

ing  the  law  applicable  to  the  conditions  of  the  people  and 
the  institutions  of  this  country,  has  revived  the  oppressive 
and  tyrannical  doctrines  of  the  star  chamber.  In  no  case 
found  in  the  Colorado  Reports  was  the  proceeding  begun 
without  affidavit;  and  in  every  one,  as  I  read  them,  where 
the  subject  is  mentioned,  it  is  stated  that  an  affidavit  is 
essential  to  the  jurisdiction  of  the  court.  The  attorney 
general  appears  to  have  regarded  an  affidavit  as  necessary ; 
for,  before  the  return  day  of  the  order  to  show  cause,  he, 
under  leave  of  court,  attached  his  verification  to  the  infor- 
mation. This,  of  course,  did  not  cure  the  defect,  if  any 
existed;  for,  if  an  affidavit  is  essential  to  give  the  court 
jurisdiction,  it  must  be  filed  as  the  initial  step  in  the  pro- 
ceedings. The  opinion  correctly  states  that  up  to  the  time 
of  the  decision  in  People  vs.  Wyatt,  17  Colo.,  252,  there 
appears  to  have  been  no  distinction  made  in  the  opinions 
between  civil  and  criminal  contempts ;  but  I  do  not  agree 
with  the  court  in  its  statement  that  the  case  of  Thomas  vs. 
The  People,  14  Colo.,  254,  which  holds  that  an  affidavit  is 
essential  to  the  jurisdiction,  has  been  overruled  by  the  deci- 
sion in  the  Wyatt  case.  The  holding  that  an  affidavit  is 
essential  has  been  expressly  affirmed;  and  in  the  Wyatt 
case  it  is  held  that  an  affidavit  is  required  by  the  common 
law.    The  court  says,  in  the  Wyatt  case  : 

"Constructive  contempts — those  not  committed  in  the  presence 
of  the  court — must,  of  course,  in  some  regular  and  legitimate  way 
be  brought  to  the  court's  knowledge;  until  this  is  done  the  process 
of  attachment  will  not  issue."  *  *  *  And  in  Gandy  vs.  The 
State,  supra,  it  is  said  that  such  proceedings  must  be  commenced 
by  a  sworn  information.  But  the  practice  generally  recognizecT 
throughout  the  United  States,  and  according  to  Blackstone  fre- 
quently followed  in  England,  is  for  some  proper  official  or  inter- 
ested party  to  set  forth  by  affidavit  the  material  facts  relied  on. 
A  little  contrariety  of  opinion  exists  as  to  whether  the  warrant  of 
commitment  or  the  order  of  court  must  recite  the  jurisdictional  facts. 
But  the  overwhelming  weight  of  authority  in  this  country  sustains 
the  proposition  that  the  affidavit  upon  which  the  proceeding  for  a 
constructive  contempt  is  based  must  state  facts  which,  if  estab- 
lished, would  constitute  the  offense;   and  that  if  the  allegations  of 


THE    OPINION    IN    THE    PATTERSON    CASE  1 73 

the  affidavit  are  not  sufficient  in  this  respect  the  court  is  without 
jurisdiction  to  proceed.  Rapaije  on  Contempts,  sections  93-94,  and 
cases  cited;  Mullin  vs.  The  People,  supra;  Thomas  vs.  The  People, 
supra;  Cooper  vs.  The  People,  supra;  Wilson  vs.  The  Territory, 
1  Wyoming,  155;  ex  parte  Peck,  3  Blatch.  (C.  C),  113;  McConnell 
vs.  The  State,  46  Indiana,  98;  Phillips  vs.  Welch,  12  Nevada,  158; 
Gandy  vs.  State,  supra;  Batchelder  vs.  More,  43  California,  412. 
Some  of  the  opinions  above  cited  refer  the  authority  for  the  affidavit 
to  statutes  similar  to  section  322  of  our  civil  code.  But  the  statute 
mentioned  and  others  of  like  tenor  are  simply  declaratory  in  this 
particular  of  what  may  fairly  be  termed  the  modern  common  law 
practice.  And  the  rule  concerning  the  materiality  of  the  affidavit 
should  prevail  to  the  same  extent  in  the  absence  of  statute.  *  *  * 
"The  position  of  those  authorities  which  hold  that  where  the 
contempt  is  constructive  the  affidavit  must  show  the  offense  com- 
mends itself  with  irresistible  force.  A  proper  regard  for  the  liberty 
of  the  citizen  forbids  the  arrest  of  parties  upon  criminal  attachment 
charged  with  this  kind  of  contempts,  without  information  under 
oath  touching  the  precise  character  of  the  alleged  offenses." 

Wyatt  was  discharged  for  the  reason  that  the  court 
was  without  jurisdiction.  This,  although  the  judgment  of 
the  court  recited  the  fact  essential  to  jurisdiction,  the  affi- 
davit failing  to  set  forth  such  fact.  This  does  not  appear 
to  overrule  the  case  of  Thomas  vs.  The  People,  but  appears 
to  approve  it.  The  case  is  cited  with  approval  and  holds, 
as  does  the  Wyatt  case,  that  unless  an  affidavit  showing 
facts  constituting  contempt  is  presented  the  court  is  without 
jurisdiction;  and  the  practice  of  instituting  the  proceeding 
by  affidavit  in  cases  of  contempt  not  committed  in  the 
court's  presence  has  been  invariably  followed  in  this  juris- 
diction. 

In  reviewing  the  Wyatt  case  the  court  says : 

"The  question  that  the  court  considers  is  not  whether  the  infor- 
mation filed  in  the  court  as  a  basis  for  the  attachment  should  have 
been  verified,  but  whether  or  not  it  stated  facts  sufficient  to  consti- 
tute a  contempt  of  court.  It  held  that  it  did  not  do  so,  not  because 
the  court  could  not  punish  for  constructive  contempt,  but  for  certain 
facts  omitted  from  the  information  not  material  to  this  ruling,  as, 
for  example,  an  order  of  the  court  requiring  the  grand  jury  to  make 
the  inspection  refused  by  the  respondent.  The  court  then  considers 
the  question  as  to  whether  the  missing  matter  is  supplied  by  the 
answer,  and  while  not  holding  whether  it  could  or  could  not  be  so 
supplied,  held  that  the  information  was  not  aided  in  such  particular 
by  the  answer." 


174  ROBERT    WILBUR    STEELE 

The  proceeding  was  commenced  by  affidavit,  not  by 
information.  The  court,  of  course,  did  not  hold  that  the 
information  must  be  verified,  but  it  did  hold  that  the  over- 
whelming weight  of  authority  sustains  the  position  that 
the  affidavit  must  state  facts  which,  if  established,  would 
constitute  the  offense.  It  also  holds  that  the  principle  gen- 
erally recognized  throughout  the  United  States  is  for  some 
proper  official  or  interested  party  to  set  forth  by  affidavit 
the  material  facts  relied  upon,  and  the  word  "affidavit"  is 
italicized.     Mr.  Justice  Helm,  writing  the  opinion,  says  : 

"It  is  not  necessar\-  to  consider  whether  this  jurisdictional 
defect  could  be  waived,  or  could  be  cured  by  answer  or  other  sub- 
sequent proceeding;  for  certain  it  is  that  such  waiver  or  correction 
did  not  take  place.  The  judgment,  it  is  true,  says  that  an  order  of 
court  was  disobeyed,  and  also  that  the  grand  jury  was  investigating 
a  criminal  offense.  But  this  judgment  was  rendered  upon  the 
pleadings  wherein  no  such  order  or  its  disobedience  was  alleged 
or  admitted.  *  *  *  There  is  absolutely  nothing  in  the  record, 
save  the  judgment,  intimating  the  existence  of  this  order.  To  say 
that  such  recitals  in  the  judgment  are  sufficient  would  be  to  nullify 
all  attempts  by  appellate  tribunals  to  inquire  into  the  jurisdiction  of 
the  court  pronouncing  the  same.  It  would  be  to  make  that  court  the 
sole  arbiter  as  to  what  does  or  does  not  constitute  a  contempt,  and 
render  the  judgment  itself  conclusive  of  this  jurisdictional  question." 

This  decision,  it  seems  to  me,  does  not  sustain  the 
contention  of  the  court  that  it  is  not  necessary  that  an  affi- 
davit be  presented,  but  clearly  says  that  an  affidavit  must 
be  presented,  and  that  unless  an  affidavit  is  presented  the 
court  is  without  jurisdiction. 

As  a  reason  for  holding  that  an  affidavit  is  not  neces- 
sary, the  court  says : 

"This  court  has  no  power  to  compel  the  verification  of  an  infor-  ' 
mation  for  contempt — People  vs.  Court  of  Sessions,  supra — to  hold 
the  verification  of  the  information  essential  would  be  to  deprive  this 
court  of  the  power  in  many  cases  to  punish  for  criminal  constructive 
contempts,  which  power,  as  we  have  seen,  has  been  by  our  decisions 
declared  to  be  inherent  and  essential  to  the  existence  of  the  court." 

This  means  that  there  may  be  times  when  no  one — the 
ever  vigilant  counsel,  the  ethical  Bar  Association,  the  zeal- 


THE    OPINION    IN    THE    PATTERSON    CASE  I75 

ous  friend,  or  the  officer  designated  by  law  to  represent  the 
authority  of  the  state — would  be  willing — because  no  con- 
tempt had  in  fact  been  committed,  because  it  would  escape 
attention,  or  because  the  criticism  was  truthful  and  just — 
to  initiate  proceedings  in  contempt,  and  that  the  court  should 
therefore  have  power  to  proceed ;  that  whenever  no  one  else 
is  willing  to  maintain  the  dignity  and  honor  of  the  court  in 
this  manner  that  it  is  essential  that  the  court  itself  should 
have  the  power  to  act.  It  is  difficult  to  conceive  of  a  case  in 
which  there  would  not  be  some  one  willing  and  anxious  to 
become  the  court's  champion — although,  in  this  instance, 
the  court  proceeded  upon  its  own  motion ;  and  it  would 
seem  to  be  wise  for  the  court  to  ignore  publications  or 
speeches  charging  its  members  with  corruption  and  political 
intrigue.  In  the  case  reported  in  46  Kan.,  613,  the  court, 
in  discussing  this  branch  of  the  subject,  uses  this  language: 

"And  a  careful  examination  of  the  authorities  satisfies  us  that 
in  all  cases  of  constructive  contempt,  whether  the  process  of  arrest 
issues  in  the  first  instance,  or  a  rule  to  show  cause  is  served,  a  pre- 
liminary affidavit  or  information  must  be  filed  in  the  court  before 
the  process  can  issue.  This  is  necessary  to  bring  the  matter  to  the 
attention  of  the  court,  since  the  court  cannot  take  judicial  notice  of 
an  offense  out  of  court  and  beyond  its  power  of  observation.  There 
are  a  few  cases  in  the  books  where  the  courts  have  taken  notice  of 
constructive  contempts,  and  issued  process  without  any  affidavit  or 
information  having  been  filed  to  bring  the  subject  matter  of  the 
contempt  to  the  attention  of  the  court;  but  such  cases  are  very  rare 
in  th's  country,  and  the  practice  is  nearly  or  <)uite  obsolete.  The 
great  weight  of  authority  is  certainly  opposed  to  such  practice. 
Courts  should  never  be  required  to  go  about  looking  for  contempts 
of  their  authority.  To  do  so  is  sufficient  to  lower  their  dignity  and 
bring  them  into  contempt." 

The  court  in  the  Stapleton  case  was  careful  to  say : 

"This  proceeding  was  not  instituted  or  instigated  by  this  court 
of  its  own  motion.  A  party  whose  cause  was  pending  in  this  court 
presented  his  sworn  petition  complaining  of  the  articles  published 
by  respondents,  and  praying  protection  from  such  assaults  pending 
the  consideration  and  determination  of  his  cause.  We  were  thus 
bound  to  take  cognizance  of  his  petition  or  give  some  reason  for 
refusing  so  to  do.  If  we  refused,  what  reason  could  we  give? 
Could   we   say   to   petitioner:    'You    are    a   convicted   criminal    and 


176  ROBERT  WILBUR  STEELE 

therefore     you     have     no     rights     which     this     court     is     bound     to 
respect  ?'     *     *     * 

"It  is  true  this  court  could  have  disposed  of  the  petition  in  this 
case  by  quietly  declining  to  take  cognizance  of  it.  Only  petitioner, 
his  counsel  and  a  few  of  their  confidential  friends,  perhaps,  would 
have  known  of  our  refusal.  But  we  should  always  have  been 
conscious  that  we  had  been  wanting  in  courage  to  meet  a  disagree- 
able issue,  and  that  we  had  declined  to  hear  a  suitor  because  he 
was  under  the  ban  of  a  public  newspaper's  displeasure.  The  only 
just  and  honorable  way,  therefore,  was  to  take  jurisdiction  of  the 
proceedings  and  require  respondents  to  show  cause,  if  any  they  had, 
why  they  had  thus  deliberately  and  repeatedly  assailed  the  honesty 
and  integrity  of  this  court  in  and  about  petitioner's  cause." 

The  court  has  not  only  taken  unto  itself  a  power  which 
most  of  the  courts  of  the  country  do  not  regard  as  essential, 
but  it  has  added  another  section  to  the  enumeration  of 
powers  heretofore  taken  by  the  court,  so  that  it  is  now  essen- 
tial to  the  very  existence  of  the  court  that,  in  the  event  no 
one  else  is  willing  to  take«the  initiative,  it  may  proceed  of 
its  own  motion  to  attach  and  punish  those  who  incur  its 
displeasure.  In  its  struggle  for  existence,  its  necessities 
would  seem  to  be  without  limit.  To  assert  that  such  a 
power  is  necessary  is  the  assertion  of  weakness,  and  inability 
to  otherwise  maintain  dignity  and  the  respect  of  the  people. 
Of  course,  it  is  not  essential  to  the  existence  of  the  court, 
notwithstanding  the  assertion  to  the  contrary.  If  it  is  essen- 
tial to  the  existence  of  the  court,  how  does  it  happen  that 
only  a  very  few  of  the  courts  of  the  country  have  taken 
this  power ;  that  none  of  the  federal  courts  could  take  it  if 
they  would;  and  that  the  Supreme  Court  of  the  United 
States  has  never  regarded  such  a  power  as  essential  to  its 
existence  ?  What  the  court  really  means  is  this :  not  that 
it  is  essential,  but  that  it  is  convenient.  That,  as  the 
respondent  made  charges  against  the  court  which  it  did  not 
relish  (there  being  no  one  who  would  voluntarily  present 
the  matter),  it  was  essential  to  the  court's  convenience  and 
satisfaction  that  it  should  proceed  sua  sponte. 


THE    OPINION    IN    THE    PATTERSON    CASE  I77 

The  respondent's  plea  to  the  jurisdiction  is  said  to  be 
a  general  appearance,  and  it  is  held  that  by  filing  his  plea 
he  waived  the  right  to  question  the  jurisdiction.  The 
respondent,  even  if  it  be  conceded  that  by  moving  to  quash 
the  information  he  entered  a  general  appearance,  could  not 
confer  jurisdiction  upon  the  court  except  of  his  person. 
But,  according  to  the  authorities,  the  court  has  no  jurisdic- 
tion of  the  subject-matter  unless  an  affidavit  is  presented 
setting  forth  the  facts  constituting  the  alleged  contempt; 
and  it  will  not  be  seriously  contended  that  jurisdiction  of 
the  subject-matter  can  be  conferred  by  waiver  or  consent. 
The  subject  under  discussion  has  no  very  important  bearing 
upon  the  case  at  bar ;  for  the  court  might  have  sustained 
the  motion  to  quash  and  granted  leave  to  refile,  and  ordered 
respondent  to  answer  by  the  return  day  of  the  order  to  show 
cause.  I  dissent  from  the  order  overruling  the  motion,  not 
so  much  because  the  respondent's  rights  and  privileges  have 
been  infringed,  as  upon  the  ground  that  the  court  has,  in 
my  judgment,  changed  the  practice  that  has  always  pre- 
vailed in  this  jurisdiction. 

The  following  citations  clearly  declare  that,  unless  the 
cause  is  pending  and  the  articles  are  calculated  and  intended 
to  influence  the  court  in  its  decision,  the  court  is  without 
authority  to  punish  for  contempt.  They  not  only  bear  upon 
the  very  subject  under  consideration,  but  discuss  generally 
the  whole  matter,  including  the  liberty  of  the  printing  press 
and  the  freedom  of  speech,  and  I  quote  at  length  from  them 
because  they  seem  to  controvert  every  conclusion  reached  by 
the  court. 

In  the  case  of  Stuart  vs.  The  People,  3  Scammon,  395, 

after  quoting  from  several  authorities  upon  the  subject  of 

constructive  contempt,  Mr.  Justice  Breese  said: 

"Into  this  vortex  of  constructive  contempts  have  been  drawn, 
by  the  British  courts,  many  acts  which  have  no  tendency  to  obstruct 
the   administration   of  justice,  but   rather  to  wound   the   feelings  or 


178 


ROBERT    WILBUR    STEELE 


offend  the  personal  dignity  of  the  judge,  and  fines  imposed,  and 
imprisonment  denounced,  so  frequently  and  with  so  little  question 
as  to  have  ripened,  in  the  estimation  of  many,  into  a  common  law 
principle;  and  it  is  urged  that  inasmuch  as  the  common  law  is  in 
force  here,  by  legislative  enactment,  this  principle  is  also  in  force. 
But  we  have  said,  in  several  cases,  that  such  portions  only  of  the 
common  law  as  are  applicable  to  our  institutions  and  suited  to  the 
genius  of  our  people  can  be  regarded  as  in  force.  It  has  been 
modified  by  the  prevalence  of  free  principles  and  the  general 
improvements  of  societj^,  and  whilst  we  admire  it  as  a  system, 
having  no  blind  devotion  for  its  errors  and  defects,  we  cannot  but 
hope  that  in  the  progress  of  time  it  will  receive  many  more  improve- 
ments and  be  relieved  from  most  of  its  blemishes.  Constitutional 
provisions  are  much  safer  guaranties  for  civil  liberty  and  personal 
rights  than  those  of  the  common  law,  however  much  they  may  be 
said  to  protect  them. 

"Our  constitution  has  provided  that  the  printing  presses  shall 
be  free  to  every  person  who  may  undertake  to  examine  the  proceed- 
ings of  any  and  every  department  of  the  government,  and  he  may 
publish  the  truth,  if  the  matter  published  is  proper  for  public  infor- 
mation and  the  free  communication  of  thoughts  and  opinions  is 
encouraged. 

*  *  *  "The  right  to  punish  for  contempts  committed  in  the 
presence  of  the  court  is  acknowledged  by  our  statute;  and  while  it 
affirms  a  principle  that  is  inherent  in  all  courts  of  justice  to  defend 
itself  when  attacked,  as  the  individual  man  has  a  right  to  do  for 
his  own  preservation,  it  may  also,  with  great  propriety,  be  regarded 
as  a  limitation  upon  the  power  of  the  courts  to  punish  for  other 
contempts.  In  this  power  would  necessarily  be  included  all  acts 
calculated  to  impede,  embarrass  or  obstruct  the  court  in  the  admin- 
istration of  justice.  Such  acts  would  be  considered  as  done  in  the 
presence  of  the  court.  So  of  rules  entered  by  the  court  prohibiting 
the  publication  of  the  evidence  or  other  matters  while  the  case  is 
pending  and  undecided.  The  limitation  of  the  power  to  such  cases 
only  is  better  calculated  to  strengthen  the  judiciary  and  fasten  it  in 
the  affections  and  esteem  of  the  people,  who  have  so  large  a  stake 
in  its  purity  and  efficiency,  than  the  enlarging  the  power  to  the 
extent  claimed. 

"An  honest,  independent  and  intelligent  court  will  win  its  way 
to  public  confidence  in  spite  of  newspaper  paragraphs,  however 
pointed  may  be  their  wit  or  satire,  and  its  dignity  will  suffer  less 
by  passing  them  unnoticed  than  by  arraigning  the  perpetrators, 
trying  them  in  a  summary  way  and  punishing  them  by  the  judg- 
ment of  the  offended  party.  ♦ 

"It  does  not  seem  to  me  necessary,  for  the  protection  of  courts 
in  the  exercise  of  their  legitimate  powers,  that  this  one,  so  liable  to 
abuse,  should  also  be  conceded  to  them.  It  may  be  so  frequently 
exercised  as  to  destroy  that  moral  influence  which  is  their  best 
possession,  until  finally  the  administration  of  justice  is  brought  into 
disrepute.  Respect  to  courts  cannot  be  compelled;  it  is  the  volun- 
tarj'  tribute   of   the   public   to   worth,   virtue    and   intelligence,    and 


THE    OPINION    IN    THE    PATTERSON    CASE  I79 

whilst  they  are  found  upon  the  judgment  seat,  so  long,  and  no 
longer,  will  they  retain  the  public  confidence. 

"If  a  judge  be  libeled  by  the  public  press,  he  and  his  assailant 
should  be  placed  on  equal  grounds,  and  their  common  arbiter  should 
be  a  jury  of  the  country;  and  if  he  had  received  an  injury,  ample 
remuneration  will  be  made. 

"In  restricting  the  power  to  punish  for  contempts  to  the  cases 
specified,  more  benefits  will  result  than  by  enlarging  it.  It  is  at 
best  an  arbitrary  power,  and  should  only  be  exercised  on  the  pre- 
servative and  not  on  the  vindictive  principle.  It  is  not  a  jewel  of 
the  court,  to  be  admired  and  prized,  but  a  rod  rather,  and  most 
potent  when  rarely  used." 

In  speaking  of  Liberty  of  Speech   and  of  the   Press, 

Cooley,  in  his  work  on  Constitutional  Limitations,  at  page 

520,  says : 

"Except  so  far  as  those  guaranties  relate  to  the  mode  of  trial 
and  are  designed  to  secure  to  every  accused  person  the  right  to  be 
judged  by  the  opinion  of  a  jury  upon  the  criminality  of  his  act,  their 
purpose  has  evidently  been  to  protect  parties  in  the  free  publication 
of  matters  of  public  concern,  to  secure  their  right  to  a  free  discus- 
sion of  public  events  and  public  measures  and  to  enable  every 
citizen  at  any  time  to  bring  the  government  and  any  person  in 
authority  to  the  bar  of  public  opinion  by  any  just  criticism  upon 
their  conduct  in  the  exercise  of  the  authoritj'  which  the  people  have 
conferred  upon  them.  To  guard  against  repressive  measures  by  the 
several  departments  of  the  government,  by  means  of  which  persons 
in  power  might  secure  themselves  and  their  favorites  from  just 
scrutiny  and  condemnation,  was  the  general  purpose,  and  there  was 
no  design  or  desire  to  modify  the  rules  of  the  common  law  which 
protected  private  character  from  detraction  and  abuse,  except  so 
far  as  seemed  necessary  to  secure  to  accused  parties  a  fair  trial. 
The  evils  to  be  prevented  were  not  the  censorship  of  the  press 
merely,  but  any  action  of  the  government  by  means  of  which  it 
might  prevent  such  free  and  general  discussion  of  public  matters 
as  seems  absolutely  essential  to  prepare  the  people  for  an  intelligent 
exercise  of  their  rights  as  citizens." 

Seymour  D.  Thompson,  in  reviewing  the   decision  in 

the    Stapleton    case,    said,    in    28    American    Law    Review, 

page  1 22 : 

"The  whole  case,  including  the  statement  of  facts  and  the 
opinion  of  the  court,  furnishes  very  painful  reading.  A  considerable 
portion,  both  of  the  statement  and  of  the  opinion,  is  devoted  to  a 
vindication  of  the  court  against  insinuations  and  charges  made  in 
language  so  reckless  and  extreme  as  to  be  unworthy  on  its  face  of 
the  slightest  credit.  We  are  not  commenting  on  the  decision  for 
the  purpose  of  offering  any  opinion  upon  the  proprietj'  of  the  con- 


l80  ROBERT  WILBUR  STEELE 


elusion  of  the  court.  Undoubtedly,  the  publications  quoted  in  the 
statement  of  the  case  constitute  contempts  at  common  law,  and 
contempts  which  no  editor  in  England  would  dare  to  commit,  for 
the  judges  in  that  country  would  deal  very  severely  with  the  authors 
of  such  a  publication.  It  must  also  be  said  that  such  publications 
are  a  great  public  evil,  for  they  tend  to  impair  the  just  confidence 
which  the  public  should  possess  in  the  integrity  of  their  judges — a 
confidence  which  in  the  United  States,  as  in  the  parent  country,  has 
seldom  been  misplaced.  If  the  constitution  and  statute  law  of 
Colorado  throw  no  restraints  upon  the  power  which  judges  possess 
at  common  law  to  punish  contempts  committed  against  their  own 
dignity  and  authority,  then  undoubtedly  the  court  reached  the  cor- 
rect conclusion;  and  if  the  proceeding  has  resulted  in  imposing  a 
severe  punishment  upon  the  authors  of  those  wanton  and  malicious 
libels  upon  the  integrity  of  the  judges,  no  right-minded  citizen  will 
regret  the  fact. 

"But  what  we  want  to  draw  attention  to  is  this:  That  the 
offense  thus  committed,  in  so  far  as  it  was  an  offense  personally  to 
the  judges,  should  have  been  redressed,  if  worthy  of  notice  at  all, 
in  an  action  for  damages  for  libel ;  and  that,  in  so  far  as  it  con- 
sisted of  public  offense — an  offense  against  the  people  of  Colorado — 
it  should  have  been  redressed  in  a  proceeding  by  indictment  against 
the  offenders,  in  which  proceeding  all  questions  of  law  and  fact 
would  have  been,  under  the  principles  of  American  constitutions, 
committed  to  the  decision  of  twelve  disinterested  and  impartial 
citizens,  instead  of  being  decided  by  the  judges  who  themselves 
were  smarting  under  the  sense  of  injury  and  outrage.  Except  so 
far  as  is  absolutely  necessary  to  protect  their  proceedings  from 
interruption  and  their  process  from  obstruction,  the  judges  of  a 
court,  whenever  they  arraign  a  person  for  contempt  of  their  court, 
present  to  the  public  the  unseemly  spectacle  of  a  judge  sitting  in 
his  own  cause.  In  this  case  it  was  that  and  little  else.  We  doubt 
whether  the  confidence  of  the  people  in  the  administration  of  public 
justice  is  not  more  deeph'  wounded  by  such  a  spectacle  than  by  the 
publication  of  the  libel  and  the  passing  it  by  unnoticed.  It  is,  more- 
over, to  be  observed  that  in  states  where,  as  in  Colorado,  the  people 
elect  their  judges,  it  is  in  accordance  with  the  spirit  of  our  institu- 
tions that  the  newspaper  press  should  possess  the  same  right  to 
criticise  the  conduct  of  the  judges  which  they  possess  to  criticise  the 
conduct  of  any  other  public  officer.  No  sound  reason  can  be  urged 
for  exempting  the  judges  from  public  criticism  for  their  official  acts 
which  will  not  equally  apply  to  the  officers  of  the  legislative  and. 
executive  departments  of  the  state.  The  article  of  Mr.  Pingrey  in 
a  former  number  of  this  publication,  which  attracted  attention  in 
England,  contains  valuable  suggestions  upon  this  question.  The 
right  publicly  to  criticise  public  officers  and  candidates  for  public 
office  is  a  valuable  popular  right,  which  ought  not  to  be  unreason- 
ably curtailed.  But  those  who  abuse  the  privilege  by  the  publica- 
tion of  wanton  and  unfounded  libels  ought  to  be  punished,  but  they 
ought  to  be  punished  not  by  the  officers  against  whom  the  libels  are 
written,  but  by  the  verdicts  of  impartial  juries." 


THE    OPINION    IN    THE    PATTERSON    CASE  l8l 

In  the  case  ex  parte  Steinman,  95  Pa.  St.,  220,  Chief 
Justice  Sharswood,  speaking  of  a  former  opinion  of  that 
court,  said : 

"Some  of  the  remarks  in  the  opinion  in  that  case  have  been 
much  relied  on  by  the  learned  counsel  who  argued  as  amid  curiae 
in  support  of  the  action  of  the  court  below.  But  there  are  two  con- 
siderations bearing  upon  the  question  which  now  exist,  but  did  not 
at  the  time  that  decision  was  rendered.  The  first  is  the  new 
provision  on  the  subject  of  the  liberty  of  the  press  which  has  been 
introduced  into  the  bill  of  rights  of  the  constitution  of  1874,  and  the 
second  is  that  at  that  time  the  judiciary  was  not  elective.  Judges, 
in  1835,  were  appointed  by  the  governor,  and  their  tenure  of  office 
was  during  good  behavior.  There  might  then  be  some  reason  for 
holding  that  an  appeal  to  the  tribunal  of  popular  opinion  was  in  all 
cases  of  judicial  misconduct  a  mistaken  course  and  unjustifiable  in 
an  attorney.  The  proceedings  by  impeachment  or  address  were  the 
course  and  the  only  course  which  could  be  resorted  to  effectually  to 
remedy  the  supposed  evil.  To  petition  the  legislature  was  then  the 
proper  step.  To  appeal  to  the  people  was  to  diminish  confidence  in 
the  court  and  bring  them  into  contempt  without  any  good  result. 
We  need  not  say  that  the  case  is  altered  and  that  it  is  now  the  right 
and  the  duty  of  a  lawyer  to  bring  to  the  notice  of  the  people  who 
elect  the  judges  every  instance  of  what  he  believes  to  be  corruption 
or  partisanship.  No  class  of  the  community  ought  to  be  allowed 
freer  scope  in  the  expression  or  publication  of  opinions  as  to  the 
capacity,  impartiality  or  integrity  of  judges  than  members  of  the 
bar.  They  have  the  best  opportunities  of  observing  and  forming  a 
correct  judgment.  They  are  in  constant  attendance  on  the  courts. 
Hundreds  of  those  who  are  called  on  to  vote  never  enter  a  court- 
house, or  if  they  do,  it  is  only  at  intervals  as  jurors,  witnesses  or 
parties.  To  say  that  an  attorney  can  only  act  or  speak  on  this  sub- 
ject under  liability  to  be  called  to  account  and  to  be  deprived  of 
his  profession  and  livelihood  by  the  very  judge  or  judges  whom  he 
may  consider  it  his  duty  to  attack  and  expose,  is  a  position  too  mon- 
strous to  be  entertained  for  a  moment  under  our  present  system." 

The  editor  of  the  Central  Law  Journal,  in  discussing 
the  decision  of  the  Michigan  court  in  the  case  of  in  re  Chad- 
wick,  reported  in  109  Michigan,  and  cited  with  approval  by 
this  court,  says,  on  page  403  of  volume  57  of  that  journal: 

"In  view  of  this  decision  it  may  be  well  to  emphasize  the 
opinion  which  we  expressed  of  this  dictum  in  the  case  of  In  re 
Chadwick,  57  Cent.  L.  J.,  102.  If,  as  we  have  said,  the  dictum  in 
that  case  was  an  'unprecedented  and  revolutionary  extension  of  the 
court's  jurisdiction,'  how  much  more  so  is  it  in  a  case  which  actually 
decides  that  point  and  attempts  to  sustain  it  by  argument  and  the 
citation  of  ancient  authority.     The  individual  members  of  the  court 


l82  ROBERT    WILBUR    STEELE 

should  have  no  greater  rights  in  cases  of  libel  than  the  governor  or 
other  officers  of  the  state  government  in  matters  of  libel.  No  halo 
of  immunity  from  public  criticism  should  surround  the  heads  of  the 
state's  judiciary  while  other  servants  of  the  people,  equally  as 
honorable,  must  stand  forth  in  the  broad  light  of  day  open  to  attacks 
of  adverse  criticism  and  searching  investigation  on  the  part  of  the 
press  and  the  people.  The  judiciary  are  but  men,  and  therefore  are 
as  open  to  corrupting  influences  as  those  in  control  of  any  other  of 
the  co-ordinate  branches  of  government,  and,  like  them,  need  the 
deterring  influence  of  free  public  criticism.  Like  them,  also,  they 
should  have  their  individual  actions  for  libel.  Certainly  no  greater 
right  to  shut  off  adverse  criticism  can  be  given  to  them  without 
throwing  wide  open  the  door  to  the  corruption  of  the  judiciary. 
The  argument  that  it  is  the  court  and  not  the  members  thereof  that 
has  been  libeled  is  purely  metaphysical  and  does  not  rest  on  the 
facts.  Every  contempt  of  this  kind  that  is  ever  committed  is  not 
against  the  court  as  a  court,  but  against  the  court  as  then  consti- 
tuted; in  other  words,  against  the  particular  members  of  the  court. 
No  one  but  an  avowed  anarchist  would  denounce  the  court  as  an 
institution.  A  good  judge  will  make  the  court  highly  respected, 
while  a  Jeffreys  will  bring  it  into  contempt,  but  in  both  cases,  in 
reality,  it  is  the  judge  himself  who  is  either  respected  or  held  in 
contempt.  Any  criticism  not  in  regard  to  a  case  pending,  therefore, 
alleged  to  constitute  a  contempt,  must,  in  nearly  every  instance, 
constitute  merely  a  libel  on  the  judge  or  judges  composing  the 
court,  for  which,  like  other  citizens,  they  should  have  their  right  of 
action,  but  no  greater  rights." 

In  State  ex  rel.  Ashbaugh  vs.  Circuit  Court,  reported 
in  39  L.  R.  A.,  page  554,  the  court,  in  considering  the  ques- 
tion of  constructive  contempt,  said  : 

"Important  as  it  is  that  courts  should  perform  their  grave 
public  duties  unimpeded  and  unprejudiced  by  illegitimate  influ- 
ences, there  are  other  rights  guaranteed  to  all  citizens  by  our  con- 
stitution and  form  of  government,  either  expressly  or  impliedly, 
which  are  fully  as  important  and  which  must  be  guarded  with  an 
equally  jealous  care.  These  rights  are  the  right  of  free  speech  and 
of  free  publication  of  the  citizen's  sentiments  'on  all  subjects' 
(Const.  U.  S.,  Amend.  1;  Const.  Wis.,  art.  1,  sec.  3)  ;  the  right  of 
trial  by  jury  (Const.  Wis.,  art.  1,  sec.  5,  7),  also  the  right  to  freely 
discuss  the  merits  and  qualifications  of  a  candidate  for  public  office, 
being  responsible  for  the  abuse  of  such  right  in  a  proper  action  at 
law.  In  the  present  case  it  is  of  the  utmost  importance  to  bear  in 
mind  that  Judge  Bailey  was  a  candidate  before  the  people  for 
re-election.  Had  he  been  a  candidate  for  any  other  office,  it  would 
not  be  contended  by  anyone  that  the  publications  in  question  would 
afford  ground  for  any  other  legal  action  than  an  action  for  libel  in 
the  regular  course  of  the  law;  but  the  claim  is  that  because  he  was 
a   judge,    and    was   holding   court    at   that   time,    such    unfavorable 


THE    OPINION    IN    THE    PATTERSON    CASE  183 

criticism  of  his  past  actions  may  be  summarily  punished  by  the 
judge  himself  as  for  contempt.  Truly,  it  must  be  a  grievous  and 
weighty  necessity  which  will  justify  so  arbitrary  a  proceeding, 
whereby  a  candidate  for  office  becomes  the  accuser,  judge  and  jury, 
and  may  within  a  few  hours  summarily  punish  his  critic  by  impris- 
onment. The  result  of  such  a  doctrine  is  that  all  unfavorable  criti- 
cism of  a  sitting  judge's  past  official  action  can  be  at  once  stopped 
by  the  judge  himself,  or,  if  not  stopped,  can  be  punished  by  imme- 
diate imprisonment.  If  there  can  be  any  more  effectual  way  to  gag 
the  press,  and  subvert  freedom  of  speech,  we  do  not  know  where  to 
find  it.  Under  such  a  rule  the  merits  of  a  sitting  judge  may  be 
rehearsed,  but  as  to  his  demerits  there  must  be  profound  silence. 
In  our  judgment,  no  such  divinity  as  this  'doth  hedge  about'  a 
judge;  certainly  not  when  he  is  a  candidate  for  public  office. 

"In  our  opinion,  it  is  not  admissible,  under  our  constitution,  that 
a  publication,  however  libelous,  not  directly  calculated  to  hinder, 
obstruct  or  delay  courts  in  the  exercise  of  their  proper  functions, 
shall  be  treated  and  punished  summarily,  as  a  contempt  of  court." 
(Storey  vs.  People,  79  111.,  45.) 

If  the  publication  was  intended  to  influence  the  decision 
in  a  pending  case,  so  as  to  prevent  litigants  from  having  a 
fair  and  impartial  trial  upon  the  merits,  it  should  be  pun- 
ished as  contempt  of  court.  (Sturoc's  case,  48  New  Hamp- 
shire, 428.) 

Mr.   Justice   Brewer,   when   a  judge   of   the   Supreme 

Court  of  Kansas,  said  : 

"It  will  be  borne  in  mind  that  the  remarks  we  have  made  apply 
only  while  the  matters  which  give  rise  to  the  words  or  acts  of  the 
attorney  are  pending  and  undetermined.  Other  considerations  apply 
after  the  matters  have  finally  been  determined,  the  orders  signed 
or  the  judgment  entered.  For  no  judge,  and  no  court,  high  or  low, 
is  beyond  the  reach  of  public  and  individual  criticism.  After  a 
case  is  disposed  of,  a  court  or  judge  has  no  power  to  compel  the 
public,  or  any  individual  thereof,  attorney  or  otherwise,  to  consider 
his  rulings  correct,  his  conduct  proper,  or  even  his  integrity  free 
from  stain,  or  to  punish  for  contempt  any  mere  criticism  or  ani- 
madversion thereon,  no  matter  how  severe  or  unjust.  Nor  do  we 
wish  to  be  understood  as  expressing  any  opinion  as  to  the  power  to 
punish  other  than  attorneys  and  officers  of  the  court  for  language  or 
conduct  even  while  the  matter  is  pending  and  undetermined."  {In 
re  Pryor,  18  Kan.,  72.) 

In  Telegram  Newspaper  Company  vs.  Commonwealth, 

172  Mass.,  294,  the  court  stated  that 

"The  publications  contained  statements  of  facts,  evidence  of 
which  was  not  competent  at  the  trial  and  was  not  introduced  at  the 


184  ROBERT  WILBUR  STEELE 

trial,  and  they  were  so  made  that  it  was  likely  that  the  presiding 
justice  and  the  jurors  would  read  them  during  the  trial,  and  the 
natural  and  probable  effect  of  them  would  be  improperly  to  influ- 
ence the  justice  and  the  jury  in  the  determination  of  the  cause. 

"The  general  rule  is  that  to  constitute  any  publication  a  con- 
tempt it  must  have  reference  to  a  matter  then  pending  in  court,  and 
be  of  a  character  tending  to  the  injury  of  pending  proceedings  upon 
it  and  of  the  subsequent  proceeding."  (Percival  vs.  State,  45 
Neb.,  741.) 

Wharton,  in  his  work  on  Criminal  Pleading  and  Prac- 
tice, speaking  of  constructive  contempts,  says : 

(Sec.  958.)  "But  in  any  view,  to  justify  a  committal,  it  must 
plainly  appear  that  the  effect  of  the  publication  is  to  interfere  with 
the  due  administration  of  justice. 

"We  should  remember,  however,  that  summary  conviction  is  a 
process  only  to  be  used  when  no  other  remedy  can  protect  public 
justice  from  obstruction.  For  a  judge,  who  supposes  himself 
insulted,  to  fine  and  imprison  his  supposed  insulter  may  be  neces- 
sary, as  where  the  insult  is  in  open  court  and  is  of  such  a  character 
that  unless  it  is  summarily  stopped  and  punished  the  court  cannot 
proceed  with  its  duties;  but  to  enable  a  judge  to  punish  by  summary 
procedure  contempts  other  than  those  just  mentioned  is  to  set  at 
naught,  without  adequate  reason,  some  of  our  highest  constitutional 
sanctions.  Such  a  process  dispenses  with  a  grand  jury.  It  inflicts 
punishment  without  conviction  of  a  petit  jury.  It  permits  the  party 
who  supposes  himself  injured  to  be  the  tribunal  which  binds  over, 
finds  the  bill,  decides  both  the  law  and  fact,  convicts  and  sentences. 
We  are  also  told,  though,  as  will  be  seen,  erroneously,  by  those  who 
advocate  the  prerogative  to  its  full  extent,  that  the  process  is  subject 
neither  to  writ  of  error,  nor  to  revision  by  habeas  corpus,  nor  pardon. 
But  the  prerogative  rests  on  a  vicious  line  of  reasoning.  The  sup- 
posed contempt  is  such  that  the  judge  will  or  will  not  be  intimi- 
dated or  swerved  by  it  in  the  discharge  of  his  duty.  If  not,  then 
there  is  no  reason  for  such  an  extraordinary  remedy.  If  otherwise, 
then  for  the  judge  to  confess  his  weakness  in  this  respect,  and  to 
make  this  confession  in  so  conspicuous  a  way,  is  at  least  as  injurious 
to  public  justice  as  is  the  publication  in  which  the  objectionable 
matter  is  contained.  But  there  is  another  view  beyond  this.  We 
can  conceive  not  only  of  a  weak  judge  who  dreads  intimidation,  but 
of  a  corrupt  judge  who  dreads  exposure.  To  give  a  bad,  bold 
man  of  this  class  an  engine  so  potent  as  this  is  to  take  away  one  of 
the  few  means  by  which  he  can  be  exposed.  Certainly  a  preroga- 
tive so  violent  and  so  damaging  should  not  be  exercised  except  in 
case  of  necessity. 

i(e  *  *  *  *  *  * 

"It  may  well  be  asked  why,  if  such  an  extreme  remedy  is  neces- 
sary in  case  of  the  judiciary,  it  is  not  in  case  of  the  executive.  The 
executive,  in  cases  of  application  for  pardon,  exercises  a  semi- 
judicial  function,  in  which,  equally  with  the  judge  trying  the  case, 


THE    OPINION    IN    THE    PATTERSON    CASE  185 

it  is  important  that  he  should  be  kept  free  from  the  influence  of 
fear,  favor  or  affection.  The  executive,  when  dealing  with  great 
questions  of  war,  or  almost  equally  great  questions  of  currency 
expansion  or  contraction,  should  be  in  an  eminent  degree  superior 
to  the  clamor  of  ignorant  or  timid  or  fanatical  declaimers,  and  to 
the  false  public  sentiment  generated  by  a  real  but  baseless  panic. 
Who,  however,  would  consider  it  consistent  with  either  law  or 
liberty  for  the  executive  to  summarily  arrest  and  imprison,  without 
the  relief  of  bail,  without  the  interposition  of  a  responsible  prose- 
cutor, without  examination  of  witnesses,  without  the  right  of  subse- 
quent revision  by  habeas  corpus,  those  from  whom  such  publications 
should  issue?  Or,  to  take  an  alternative  still  more  applicable,  is 
such  a  prerogative  safely  to  be  claimed  for  the  legislature?  The 
legislature  is  co-ordinate  in  power  and  dignity  with  the  judiciary. 
The  legislature,  either  federal  or  state,  has,  no  doubt,  power  to 
punish  summarily  for  contempts  by  which  the  exercise  of  its  dis- 
tinctive functions  is  physically  impeded ;  but  can  we  rightfully 
claim  for  the  legislature  power  to  commit  summarily  persons  criti- 
cising, no  matter  how  unfairly  or  corruptly,  measures  over  which  it 
is  still  deliberating?  But  if  the  exercise  of  such  a  power  is  not 
permitted  to  executive  or  legislature,  why  should  it  be  conceded  to 
the  judiciary?  Or,  if  so  conceded  to  the  judiciary,  why  should  we 
withdraw  from  the  prerogative  those  general  considerations  of 
policy  already  noticed,  which,  while  retaining  for  libels  common 
law  prosecutions,  invoke,  in  the  institution  of  such  prosecutions, 
peculiar  caution,  tenderness  and  reserve?  But,  however  these  ques- 
tions may  be  determined,  two  points  remain :  First,  the  doctrine 
of  constructive  contempt  is  of  recent  introduction,  not  being  part  of 
the  common  law  brought  with  them  to  this  country  by  our  colonists; 
and,  secondly,  it  is  a  violent  remedy,  justifiable  only  in  cases  not 
reached  by  bindings  over  to  keep  the  peace,  or  bindings  over  for 
trial." 

The  case  of  Myers  vs.  The  State,  46  Ohio  St.,  473, 
was  the  review  of  a  cause  originating  in  the  Circuit  Court 
at  Columbus.  Myers  and  another  had  been  jointly  indicted, 
and,  upon  the  trial  of  the  person  joined  with  him  in  the 
indictment,  Myers  caused  to  be  published  in  a  newspaper 
circulated  at  the  place  of  trial  an  article  in  which  it  was 
charged  that  the  indictment  was  returned  for  partisan  pur- 
poses, that  the  jury  was  never  honestly  drawn,  and  that  the 
judge,  clerk  and  prosecutor  had  packed  the  grand  jury. 
The  Supreme  Court  of  Ohio,  in  considering  the  case,  said : 

"It  was  not  the  libel  against  the  judge  which  constituted  the 
offense  for  which  the  respondent  was  liable  as  for  a  contempt  of 
court.     The  offense  consisted  in  the  tendency  of  his  acts  to  prevent 


l86  ROBERT    MHLBUR    STEELE 

a  fair  trial  of  the  cause  then  pending  in  the  court.  It  is  this  offense 
which  constitutes  the  contempt,  and  for  which  he  could  be  punished 
summarily;  and  the  fact  that  in  committing  this  offense  he  also 
libeled  the  judge,  and  may  be  proceeded  against  by  indictment 
therefor,  is  no  reason  why  he  may  not  and  should  not  be  punished 
for  the  offense  against  the  administration  of  justice." 

In  applying  the  doctrine  of  a  "pending  case"  the  court 
has  indulged  in  a  mere  fiction  and  has  enlarged  its  powers 
as  heretofore  declared  in  the  Cooper  and  Stapleton  cases, 
where  the  court  held  that  the  articles  were  clearly  calculated 
and  intended  to  improperly  influence  a  decision,  and  has 
punished  for  contempt  a  publisher  who  criticised  the  past 
action  of  the  court.  No  party  or  person  interested  brought 
the  matter  to  the  attention  of  the  court,  and  those  in  whose 
favor  the  judgments  were  rendered  appear  to  have  been 
entirely  satisfied  that  their  rights  would  be  protected  and 
that  the  mental  poise  of  the  court  would  not  be  affected  by 
the  publications.  No  one  will  seriously  contend,  I  think, 
that  the  respondent  had  any  intention  or  expectation  of 
influencing  the  ruling  upon  a  motion  for  rehearing.  The 
parties  were  lost  sight  of  completely.  The  judgments,  while 
affecting  individuals,  in  effect  declared  a  constitutional 
amendment  unconstitutional ;  and  the  respondent  con- 
demned the  judges  and  impugned  their  motives.  He  was 
guilty  of  libel,  and  not  of  contempt,  if  the  articles  pub- 
lished were  false.  That  the  judges  regarded  themselves, 
and  not  the  parties,  and  proceeded  against  the  respondent 
for  libeling  them,  rather  than  for  intermeddling  in  a  pend- 
ing cause,  is  apparent  from  the  fact  that  he  is  the  only 
publisher  in  Denver  against  whom  proceedings  were  com-- 
menced,  although  another  journal,  during  the  period  cov- 
ered by  the  articles  in  question,  was  in  unmeasured  terms 
commending  the  alleged  patriotic  action  of  the  court,  and 
announced  that,  although  petitions  for  rehearing  would  be 
filed,  they  would  be  filed  as  a  mere  matter  of  form  and 
without  hope  of  favorable  action. 


THE    OPINION    IN    THE    PATTERSON    CASE  187 

The  court  says : 

"While  such  causes  were  before  tlie  court  upon  the  petition  for 
rehearing  they  were,  as  to  the  law  of  contempts,  pending  causes." 

They  were  pending — theoretically.  The  court  had 
rendered  judgment.  The  opinions  were  filed,  giving  reasons 
for  the  judgments,  as  required  by  law.  No  petition  for 
rehearing  had  been  filed  when  the  articles  were  published. 
The  opinions  were  given  out  for  publication,  and,  as  they 
involved  great  public  questions,  they  were  published.  By 
giving  out  the  opinions,  the  court  invited  criticism,  and 
should  have  expected  that  would  happen  which  did  happen 
— that  they  would  be  freely  discussed  in  the  public  journals. 
It  was  not  only  the  right  of  these  journals  to  criticise  at 
this  most  opportune  time,  but  it  was  the  right  of  the  public 
to  read  and  hear  concerning  them.  Moreover,  under  our 
practice,  nothing  that  has  been  presented  will  be  considered 
by  the  court  on  petition  for  rehearing ;  so  that,  unless  it  is 
designed  to  stifle  and  prevent  criticism  at  the  time  when  it 
is  intended  the  public  should  hear  what  judgments  its  judges 
are  rendering,  the  rule  announced  by  the  court  is  unjust. 
But,  whether  it  was  so  designed  or  not,  its  effect  is  the 
same;  for  it  is  left  to  the  judges  to  determine  when  they 
will  pass  upon  a  petition  for  rehearing,  and  it  may  be  a 
year  or  more  after  the  judgment  is  rendered  before  the 
petition  for  rehearing  is  granted  or  denied.  In  a  case  filed 
by  one  Moyer  in  which  the  decision  was  rendered  in  the 
spring  of  1 904,  leave  to  withdraw  the  petition  for  rehearing 
was  not  granted  until  the  summer  of  i^O^,  although  leave 
was  asked  in  the  summer  of  1904.  This  was  a  case  in 
which  the  people  were  vitally  interested  and  the  public  had 
a  right  to  hear  the  questions  involved  discussed,  yet  the 
court  withheld  its  permission  to  withdraw  the  petition  for 
nearly  a  year. 


l88  ROBERT  WILBUR  STEELE 

The  judgment  clothes  every  judge  in  the  state  with  a 
power  he  should  not  possess ;  that  it  was  never  intended  by 
our  people  that  he  should  possess ;  and  to  possess  which  is 
altogether  at  variance  with  our  free  institutions.  The  judges 
should  court  criticism,  not  stifle  it.  The  surest  way  to  lose 
the  confidence  of  the  people  is  to  render  a  judgment  the 
effect  of  which  is  to  suppress  the  truth,  particularly  if  it 
affects  the  judge  personally.  The  people  want  to  respect 
the  judges,  and  probably  do  respect  them  more  than  they 
do  the  officers  of  any  other  department;  but  they  cannot  be 
driven  to  respect  them  by  oppressive  and  tyrannical  judg- 
ments. They  may,  for  the  time,  sullenly  obey  judgments 
such  as  this,  but  they  have  a  right  that  is  quite  as  sacred  as 
the  individual  right  of  the  printer  or  speaker,  and  that  is 
the  right  to  hear  and  know  about  all  their  servants,  and  it 
will  require  more  than  one  judgment  to  effectually  deprive 
them  of  the  right  to  hear  and  know  about  their  judges. 

The  so-called  "auditorium  case"  was  pending,  and  if 
the  judgment  had  been  based  upon  the  article  in  which  that 
case  is  mentioned  I  should  have  undertaken  to  show  that 
under  the  decisions  no  contempt  was  in  fact  committed. 
But  the  court  has  punished  the  respondent,  not  because  he 
has  undertaken  to  unduly  influence  a  decision  and  to  pre- 
vent the  litigants  from  having  a  fair  trial,  but  because  he 
has  impugned  the  judges'  motives  and  because  when  he 
filed  his  answer  he  reasserted  his  charges. 

The  court  cites  one  case  in  support  of  the  proposition 
that  the  causes  were  pending  for  the  purposes  of  contempt.. 
The  general  doctrine  is  that  after  the  judgment  is  rendered 
the  people  are  at  liberty  to  discuss  it;  and  this  is  particu- 
larly true  where,  as  under  our  statute,  the  court  is  required, 
when  it  announces  its  judgments,  to  file  an  opinion  stating 
its  reasons  therefor.  In  the  two  cases  from  Colorado  the 
causes  were  both  pending.     The  writer  of  the  article  not 


THE    OPINION    IN    THE    PATTERSON    CASE  189 

only  libeled  the  judges,  but  he  stated  facts  concerning  the 
parties  which  had  a  tendency  to  influence  the  community 
and  the  judges  with  respect  to  their  causes.  In  the  Ohio 
case  which  we  have  cited,  People  vs.  Myers,  it  was  expressly 
held  that  the  defendant  was  not  punished  for  libel  upon  the 
judge,  but  because  he  had  undertaken  to  publish  matters  in 
the  presence  of  the  court  and  the  jurors  which  might  have  a 
tendency  to  affect  the  decision  in  the  case.  In  the  Massa- 
chusetts case,  it  will  be  observed  that  the  newspaper  articles 
published  contained  facts  which,  the  court  remarks,  would 
not  be  admissible  in  evidence,  and  therefore  the  publisher, 
inasmuch  as  such  facts  were  brought  to  the  attention  of  the 
court  and  jury,  was  held  for  contempt.  In  a  South  Dakota 
case,  on  the  day  after  the  trial  of  a  criminal  case,  the  pub- 
lisher condemned  the  court  and  its  judgment,  but  the 
Supreme  Court  of  South  Dakota  said : 

"The  object  of  contempt  proceedings  is  not  to  enable  the  judge, 
who  deems  himself  aggrieved,  to  punish  the  supposed  wrongdoer  to 
gratify  his  own  personal  feelings,  but  to  vindicate  the  dignity  and 
independence  of  the  court,  and  to  protect  himself  and  those  neces- 
sarily connected  with  it  while  a  matter  is  pending  before  it  from 
insolent  and  contemptuous  abuse  calculated  to  intimidate,  influence, 
embarrass,  or  prevent  a  fair  and  impartial  trial.  If  the  judge  was 
unjustly  assailed  by  the  article  in  question  he  had  the  same,  and 
only  the  same,  remedies  for  the  redress  of  the  wrong  which  belong 
to  all  other  citizens.  After  the  conclusion  of  a  trial  the  right  of  the 
press,  without  fear  of  punishment  by  contempt  proceedings,  in  the 
interest  of  the  public  good,  to  challenge  the  conduct  of  the  judge, 
parties,  jurors  or  witnesses  and  to  arraign  them  at  the  bar  of  public 
opinion  in  connection  with  causes  that  have  been  fully  determined, 
cannot  be  denied  by  a  court  in  any  other  manner  than  by  the  ordi- 
nary proceedings  in  courts  of  justice.  It  would  be  a  perversion  of 
the  salutary  doctrines  governing  the  proceedings  of  courts  and  their 
power  to  punish  for  contempts  to  permit  a  judge  to  summon  before 
him  and  punish  by  fine  and  imprisonment  one  who  challenges  his 
learning,  integrity  or  impartiality  as  a  judge  in  a  public  newspaper, 
except  when  the  interests  of  the  state  demand  it,  to  vindicate  the 
independence  and  integrity  of  the  courts  and  to  protect  them  from 
publications  directly  calculated  to  embarrass,  impede,  intimidate  or 
influence  them  in  the  due  administration  of  justice  in  proceedings 
pending  before  them." 


190  ROBERT  WILBUR  STEELE 

The  New  Hampshire  case  mentioned  in  the  opinion  as 
sustaining  the  decision  of  the  court  was  a  case  in  which  a 
publisher,  while  jurors  were  in  attendance  upon  the  court, 
ready  to  be  summoned  to  try  the  cause,  published  articles 
reflecting  upon  one  of  the  parties  to  the  suit  and  commenting 
in  severe  terms  upon  the  prosecution ;  and  the  court  held 
that,  as  the  articles  had  a  direct  bearing  upon  the  cause  that 
was  then  pending,  and  rjnight  influence  the  jurors  in  the 
determination  of  that  cause,  it  was  a  contempt  of  court. 

In  the  case  State  vs.  Dunham,  reported  in  6th  Iowa, 
245,  the  court  says,  speaking  of  newspaper  articles  the  pub- 
lication of  which  have  been  held  to  be  contempt  of  an 
inferior  court : 

"Nor  are  we  to  be  understood  as  sanctioning  the  propriety  of 
the  course  pursued  by  respondent  in  his  comments  and  references 
to  the  proceedings  of  the  court.  If  his  attack  was  libelous,  then  it 
seems  to  us  that  he  and  the  judge  assailed  should  be  placed  on  the 
same  grounds,  and  'their  common  arbiter  should  be  a  jury  of  the 
country.'  No  court  can  or  should  hope  that  its  opinions  and 
actions  can  escape  discussion  or  criticism.  When  a  case  is  disposed 
of,  and  the  decision  announced,  such  decision  becomes  public  prop- 
erty, so  to  speak.  The  construction  given  to  a  statute — the  reasoning 
and  conclusion  of  the  court  upon  the  facts — all  go  to  the  public,  and 
become  subject  to  public  scrutiny  and  investigation.  In  such  cases, 
it  is  perfectly  competent  and  lawful  for  anyone  to  comment  upon 
the  decision,  and  expose  its  errors  and  inconsistencies.  If  such 
comments  do  not  correct  errors,  they  will,  at  least,  lead  to  renewed 
caution  and  circumspection  upon  the  part  of  those  whose  duty  it  is 
to  declare  the  law.  It  would  be  a  fruitless  undertaking  in  this 
country — where  the  freedom  of  speech  and  the  press  is  so  fully 
recognized,  and  so  highly  prized — to  attempt  to  prevent  judicial 
opinions  from  being  as  open  to  comment  and  discussion  as  an  opin- 
ion or  treatise  upon  any  other  subject.  It  is  well,  and  fortunate 
that  it  is  so.  This  right  is  fully  recognized  in  England,  and  it 
would  be  strange  if,  under  our  institutions,  we  should  be  less  toler- 
ant. To  investigate  and  discuss  the  opinion  of  the  court,  and  to 
disobey  its  mandates  or  orders,  are  quite  different  things.  All  men 
may  rightfully  make  their  comments,  but  none  should  disobey, 
except  upon  pain  of  suffering  the  penalty  attached  for  violation. 
And  should  those  thus  commenting  leave  the  subject,  and  impute 
dishonesty  or  base  motives  to  the  judge,  he  may  be  punished  by 
indictment  for  a  libel,  he  may  be  answerable  in  damages  in  a  civil 
action,  or  he  may  be  liable  to  both  prosecutions." 


THE    OPINION    IN    THE    PATTERSON    CASE  I9I 

But  in  none  of  the  cases  I  have  cited  is  language  more 
applicable  than  that  of  Mr.  Justice  Helm  in  the  case  of 
People  vs.  Green,  7  Colo.,  244,  where  he  says  : 

"But  respondent  undertakes  to  shield  himself  under  the  plea  of 
freedom  of  speech,  and  a  right  to  criticise.  In  this  country,  and  in 
England  also,  the  utmost  liberty  of  speech  is  guaranteed  by  statute 
and  enforced  by  the  courts;  the  right  to  discuss  all  matters  of 
public  interest  or  importance  is  everywhere  fully  recognized;  judi- 
cial decisions  and  conduct  constitute  no  exception  to  the  rule;  the 
judge's  official  character  and  his  acts  in  cases  fully  determined 
are  subject  to  examination  and  criticism;  in  most  states  the  office  is 
elective,  and  it  is  proper  and  right  that  the  people  should  be 
informed  of  the  occupant's  mental  and  moral  fitness.  True,  under 
the  guise  of  criticism  in  the  public  press  and  otherwise,  judges  are 
often  compelled  to  endure  the  sting  of  misrepresentation  and 
calumny  with  no  other  redress  than  an  ordinary  civil  action;  and 
doubtless  it  sometimes  happens  that  their  efficiency  in  office  is 
thereby  lessened,  to  the  detriment  and  injury  of  the  public  service; 
but  it  is  widely  considered  better  that  these  wrongs  and  injuries 
should  be  tolerated  than  that  the  sacred  liberty  of  speech,  printed 
or  spoken,  should  be  abridged  by  lodging  an  arbitrary  power  to 
interfere  therewith  in  the  hands  of  the  court  or  judge,  so  long  as 
such  criticism  is  not  designed  to  influence  the  mind  of  the  judge  in 
a  cause  still  undetermined." 

It  is,  as  Wharton  says,  "a  confession  of  weakness"  for 
a  judge  to  confess  in  so  conspicuous  a  way  as  punishment 
for  contempt  that  criticism  of  his  opinions  handed  down 
may  influence  a  decision  on  a  petition  for  rehearing  if  one 
is  filed.  And  it  is  "at  least  as  injurious  to  public  justice  as 
is  the  publication  in  which  the  objectionable  matter  is  con- 
tained." 

But  the  court  makes  the  plea  that  it  is  one  of  the  essen- 
tial powers  of  the  court — essential  to  its  very  existence  and 
absolutely  necessary  to  maintain  dignity  and  command 
respect.  I  concede  that  power  to  punish  for  contempt  is 
essential  to  a  proper  enforcement  of  the  decrees  of  a  court, 
for  this  is  recognized  by  the  legislature ;  but  I  deny  that  it 
is  essential  and  necessary,  to  maintain  dignity  and  com- 
mand the  respect  of  the  people,  that  the  power  should 
extend   to   contempts   of   this   character.      Instead   of   com- 


192  ROBERT  WILBUR  STEELE 

manding  respect,  it  has  the  opposite  effect.  The  respect 
must  be  earned  by  honest  judgments  and  upright  conduct 
of  the  judges;  and  when  this  arbitrary  power  is  used  the 
people  regard  it  as  an  element  of  weakness  rather  than  as 
an  evidence  of  integrity.  The  people  themselves  will  rally 
to  the  support  of  the  court.  The  newspapers  will  be  first 
of  all  to  resist  an  unwarranted  attack  upon  the  court.  Pub- 
lic opinion  will  discountenance  unjust  assaults,  and  when 
the  court  is  unreasonably  assailed  the  persons  who  thus 
assail  it  will  in  the  end  suffer.  For  a  court  having  the 
confidence  and  esteem  of  the  public  cannot  be  harmed  by 
unjust  criticism. 

Lord  Erskine,  in  speaking  upon  the  subject  of  free 
speech  and  fundamental  rights,  said :  "Engage  the  people 
by  their  affections,  convince  their  reason — and  they  will  be 
loyal  from  the  only  principle  that  can  make  loyalty  sincere, 
vigorous  or  rational — a  conviction  that  it  is  their  truest 
interest,  and  that  their  government  is  for  their  good.  Con- 
straint is  the  natural  parent  of  resistance,  and  a  pregnant 
proof  that  reason  is  not  on  the  side  of  those  that  use  it. 
You  must  all  remember  Lucian's  pleasant  story :  Jupiter 
and  a  countryman  were  walking  together,  conversing  with 
great  freedom  and  familiarity  upon  the  subject  of  heaven 
and  earth.  The  countryman  listened  with  attention  and 
acquiescence  while  Jupiter  strove  only  to  convince  him ;  but, 
happening  to  hint  a  doubt,  Jupiter  turned  hastily  around 
and  threatened  him  with  his  thunder.  'Ah,  ha !'  says  the 
countryman ;  'now,  Jupiter,  I  know  that  you  are  wrong ; 
you  are  always  wrong  when  you  appeal  to  your  thunder.'  " 

So  I  say.  Whenever  we  exert  this  arbitrary  and  des- 
potic power,  as  pelting  and  petty  officers  always  do — this 
power  not  given  by  the  constitution  or  by  legislative  enact- 
ment, but  taken  and  exercised  because  of  its  alleged  neces- 
sity— we  convince  no  one;  and  that  unless  our  judgments 


THE    OPINION    IN    THE    PATTERSON    CASE  I93 

are  wise  and  just,  and  our  members  are  themselves  honest 
and  incorruptible,  we  shall  receive  the  just  censure  of  the 
public,  through  the  exercise  of  the  right  of  free  speech  and 
through  the  medium  of  the  printing  press,  notwithstanding 
our  thunder. 

For  nearly  thirty  years  the  judges  of  the  federal  court 
have  held  sessions  here  and  have  determined  great  and 
momentous  cases  of  public  import.  Yet,  in  the  face  of  the 
fact  that  they  have  not  the  power  to  punish  as  for  contempts 
the  publishers  of  articles  or  for  spoken  words  defaming  the 
judges,  no  one  that  I  now  recall  has  ever  attacked  the 
integrity  of  the  judges  or  impugned  their  motives.  During 
this  time  one  of  the  judges  has  resided  here  in  Denver,  and, 
notwithstanding  the  fact  that  he  is  forbidden  by  statute  to 
entertain  proceedings  of  this  nature,  he  holds  the  respect 
and  confidence  of  the  people  and  the  motives  of  his  judg- 
ments are  not  questioned. 

In  a  recent  work  on  constructive  contempt  by  John  L. 
Thomas,  former  judge  of  the  Supreme  Court  of  Missouri, 
this  subject  is  so  convincingly  presented  that  I  shall  quote 
what  he  says  upon  the  "Law  of  Necessity"  at  length.  This 
eminent  jurist  says : 

"The  courts  base  their  power  to  punish  for  contempt  chiefly 
upon  the  law  of  necessity,  which  is  the  law  of  self-defense.  To 
some  extent  that  may  be  true.  That  the  courts  should  have  power, 
by  summary  process,  at  the  time  to  keep  the  peace  within  their  own 
precincts;  to  protect  themselves  and  the  parties  concerned  in  the 
business  before  them  from  insult  and  interference,  and  enforce  their 
orders  and  judgments,  is  too  axiomatic  to  admit  of  proof  by  argu- 
ment; but  acts  or  words,  done  or  said  or  published  away  from  the 
courts,  and  not  in  their  presence,  stand  upon  different  grounds 
entirely,  because  the  law  of  necessity  does  not  apply  in  these,  there 
being  other  more  appropriate  remedies  for  any  wrong  growing  out 
of  them. 

"It  is  submitted  that  the  law  of  necessity  cannot  be  invoked  in 
support  of  the  power  of  the  court  to  try  and  punish  for  contempt 
anyone  for  the  publication  of  a  libel  upon  them  or  for  other  acts 
not  done  in  their  presence.  An  abstract  theory,  though  in  appear- 
ance  it   may  be   most   plausible   and   beautiful,   is   sometimes   flatly 


194  ROBERT    WILBUR    STEELE 

contradicted  by  experience  and  the  facts  of  history,  and  that  is  the 
case  with  the  theory  upon  which  this  power  is  made  to  rest  by  its 
advocates.  It  is  asserted  that  this  power  is  an  essential  attribute 
of  constitutional  courts  only — that  a  statutory  court  may  be  deprived 
of  this  essential  attribute  and  yet  continue  to  exist  as  a  court.  This 
is  the  rule  generally  applied  by  the  courts.  This  was  done  by  the 
Supreme  Court  of  the  United  States  in  ex  parte  Robinson,  19  Wall., 
505;  in  the  Frew  case,  24  W.  Va.,  416;  in  the  Shepherd  case  and 
many  others.  So  that  it  seems  that  the  law  of  necessity  is  the  sup- 
port of  some  courts  and  some  courts  have  to  stand  without  that  law. 
The  reason  for  such  a  distinction  is  not  apparent  to  the  writer.  To 
my  mind  that  so-called  law  of  necessity  is  no  law  at  all,  for  if  it 
were  no  court  could  exist  without  it. 

"But  this  is  not  all.  This  theory  of  the  law  of  necessit}',  as 
applicable  to  the  punishment  for  contempt  for  newspaper  publica- 
tions, is  flatly  contradicted  by  the  facts  of  history.  The  Supreme 
Court  of  the  United  States  has  never  exercised,  or  attempted  to 
exercise,  such  a  power,  though  it  has  at  times,  for  one  hundred 
years  or  more,  been  vilified,  abused  and  libeled  in  an  outrageous 
manner.  It  has  been  libelously  criticised  by  the  public  press  for  its 
decisions  in  the  national  bank  cases,  the  Dartmouth  College  case, 
the  Dred  Scott  case,  the  reconstruction  cases,  the  legal  tender  cases, 
and  we  all  remember  the  vituperative  and  libelous  attacks  made  by 
the  press  and  many  public  speakers  upon  that  high  tribunal  for  its 
decision  in  the  income  tax  and  insular  cases;  and  yet  the  court 
remained  silent  and  passive;  but  it  still  exists  in  all  its  vigor.  That 
court,  in  1873,  in  ex  parte  Robinson,  decided  that  under  the  act  of 
congress  of  March  2,  1831,  the  courts  inferior  to  the  Supreme  Court 
of  the  United  States  have  no  jurisdiction  in  a  contempt  proceeding 
for  acts  not  committed  in  their  presence;  and  yet  there  are  no  courts 
of  the  states  of  this  Union  that  stand  higher  or  are  more  respected 
than  the  United  States  Court  of  Appeals,  the  United  States  Circuit 
Courts  and  the  United  States  District  Courts.  The  members  of  the 
Supreme  Court  often  sit  in  some  of  these  and  aid  in  the  administra- 
tion of  the  law  in  the  trial  of  causes.  These  courts  are  absolutely, 
so  far  as  their  power  to  punish  as  for  a  contempt  a  newspaper  pub- 
lication, at  the  mercy  of  the  slanderers  and  libelers  of  this  country, 
which  our  Supreme  Court  stands  so  much  in  dread  of.  And  yet 
those  courts  continue  to  exist  as  courts.  And  our  state  Supreme 
Court,  the  Court  of  Appeals  and  the  Circuit  Courts  never  exercised 
this  extraordinary  prerogative  prior  to  1903,  and  yet  they  continued 
to  exist.  The  same  may  be  said  of  ninety-nine  per  cent  of  all  the 
courts  in  our  country.  Lords  Erskine  and  Campbell  did  not  think 
the  power  essential  to  a  court. 

"Speaking  upon  this  very  point,  the  Supreme  Court  of  Illinois, 
in  the  Storey  case,  supra,  quoting  from  a  former  decision  of  the 
same  court,  said: 

"  'It  does  not  seem  necessary  for  the  protection  of  courts 
in  the  exercise  of  their  judicial  power,  that  this  one  (con- 
tempt for  libelous  publication),  so   liable  to   abuse,  should 


THE    OPINION    IN    THE    PATTERSON    CASE  I95 

be  conceded  to  them.  It  may  be  so  frequently  exercised  as 
to  destroy  that  moral  influence,  which  is  their  best  posses- 
sion, until  finally  the  administration  of  justice  is  brought 
into  disrepute.  Respect  for  courts  cannot  be  compelled. 
It  is  the  voluntary  tribute  of  the  public  to  worth,  virtue 
and  intelligence,  and  while  they  are  found  upon  the  judg- 
ment seat,  so  long,  and  no  longer,  will  they  retain  the 
public  confidence.  If  a  judge  be  libeled  by  the  public 
press,  he  and  his  assailant  should  be  placed  on  equal 
grounds,  and  their  common  arbiter  should  be  a  jury  of  the 
county.' 

"The  Supreme  Court  of  Wisconsin,  speaking  on  the  same  sub- 
ject, in  State  ex  rel.  vs.  Court,  44  L.  R.  A.,  554,  said: 

"  'Is  it  necessary  that  a  court  should  possess  this  power? 
We  feel  bound  to  hold  that,  considering  the  rights  of  the 
citizen  just  referred  to,  no  such  power  as  this  is  necessary 
for  the  due  administration  of  justice.  It  may  be  fully 
admitted  that  under  the  common  law  as  administered  in 
England  the  mere  writing  contemptuously  of  a  superior 
court  of  justice  has  been  declared  a  constructive  contempt. 
(4  Bl.  Com.,  285.)  We,  however,  adopted  no  part  of  the 
common  law  which  was  inconsistent  with  our  constitution 
(Cons.  Wis.  Schedule,  sec.  131),  and  it  seems  clear  to  us 
that  so  extreme  a  power  is  inconsistent  with  and  would 
materially  impair  the  constitutional  right  of  free  speech 
and  free  print.' 

"To  the  same  effect  is  the  opinion  of  the  court  in  Mississippi, 
in  ex  parte  Hickey,  4  Smedes  &  M.,  751,  and  it  has  been  the  firm 
conviction  of  the  people  of  this  coimtrj'  for  over  a  hundred  years 
that  this  power  is  not  necessary,  but  that  it  is  a  power  so  arbitrary 
and  so  liable  to  abuse  that  it  ought  not  to  be  intrusted  to  the  court, 
but  that  cases  involving  the  abuse  of  freedom  of  speech  and  the 
press  ought  to  be  tried  by  an  impartial  jury  before  courts  that  have 
and  can  have  no  personal  interest  in  the  result.  Hence  this  power 
in  this  respect,  not  being  based  on  the  law  of  necessity,  can  be  taken 
away  from  or  not  conferred  on  the  courts  at  the  will  of  the  legis- 
lature. Whether  the  power  to  protect  themselves  from  insult  and 
keep  the  peace  in  their  ov^n  precincts  and  enforce  their  own  judg- 
ments can  be  taken  away  from  the  courts  or  given  to  some  other 
judicial  tribunal  has  not  arisen  in  this  countrv'  yet,  for  no  legisla- 
ture has  ever,  up  to  this  time,  attempted  to  go  that  far,  and  until 
such  an  attempt  is  made  so  improbable  a  contingency  need  not  enter 
into  the  discussion. 

"Our  contempt  statute  not  only  recognizes,  but,  in  terms,  con- 
fers the  power  on  the  courts  to  punish  for  contempts  committed  in 
their  presence,  and  for  refusing  to  obey  the  process  or  orders  of  the 
court,  and  beyond  these  the  law  of  necessity,  if  it  exists  at  all,  does 
not  extend." 


196  ROBERT    WILBUR    STEELE 

This  plea  of  necessity  has  always  been  urged  as  the 
reason  for  the  exercise  of  arbitrary  power  not  sanctioned  by 
law.  All  tyrants  take  refuge  behind  it.  It  is  the  reason 
urged  for  misgovernment  everywhere.  The  constitution  is 
ignored  and  the  statutes  disregarded  mainly  upon  the  plea 
of  necessity.  The  power  of  judging  of  the  necessity  is,  by 
this  same  doctrine  of  necessity,  as  a  matter  of  course  lodged 
in  the  person  making  the  plea. 

Judge  Thomas  further  says,  page  41  : 

"Those  who  opposed  proceedings,  based  on  attachment  for  con- 
tempt of  court  for  newspaper  publications,  did  not  deny  that  courts 
ought  to  be  protected  against  unjust  and  malicious  criticism,  but 
they  did  deny  the  propriety,  if  not  the  right  of  the  judge  to  try  any 
issue  in  which  his  personality  must  of  necessity  more  or  less  enter, 
and  which,  they  felt,  can  but  influence  his  decision.  This  objection, 
however,  applies  only  where  the  contempt  proceeding  is  for  criti- 
cism of  the  judge  by  print,  writing  or  picture,  and  does  not  apply 
to  the  enforcement  of  the  orders  of  the  court,  for  in  this  the  person- 
ality of  the  judge  does  not  enter  in  the  slightest  degree,  and  hence 
personal  bias  in  such  cases  can  have  no  appreciable  influence  over 
the  decision  of  a  just  judge.  Lord  Erskine,  at  the  close  of  his  great 
career,  gave  it  as  his  opinion  that  there  ought  to  be  a  jury  trial 
when  a  person  is  charged  with  libeling  a  court  or  judge;  and  Lord 
Campbell,  one  of  the  chief  justices  of  England,  in  a  note  to  the 
case  of  Rex.  vs.  Almond,  Wilm.  Op.,  243,  third  volume  of  his  Lives 
of  the  Lord  Chief  Justices,  190,  says:  'In  consequence  of  the  resig- 
nation of  Sir  Fletcher  Norton,  who  as  attorney  general  had  made 
the  motion,  it  (the  Almond  case  for  contempt)  was  dropped  after 
cause  shown  while  the  court  was  considering  its  judgment;  and 
although  there  can  be  no  doubt  as  to  the  power  to  proceed  by  attach- 
ment in  such  a  case — if  a  prosecution  for  libel  on  judges  be  neces- 
sary— the  preferable  course  is  to  proceed  by  information  or  indict- 
ment, so  as  to  avoid  placing  them  in  the  invidious  situation  of 
deciding  where  they  may  be  supposed  to  be  parties.'  " 

The  court  says  that  the  case  of  Hughes  vs.  The  People 
is  authority  for  holding,  as  it  does,  "that  the  truth  of  the 
matter  charged  as  contemptuous  is  not  justification  to  the 
charge  of  contempt."  The  court  further  says  that  the  court 
very  briefly  disposed  of  the  offer  of  Hughes  to  prove  the 
truth  of  his  charges,  and  quotes  the  following  language 
used  by  the  court : 


THE    OPINION    IN    THE    PATTERSON    CASE  I97 

"It  is  further  assigned  for  error  that  the  court  rejected  testi- 
mony offered  to  prove  the  truth  of  the  matter  charged  in  the  writ- 
ings. After  what  we  have  already  said  it  is  scarcely  necessary  to 
add  that  this  assignment  is  untenable." 

I  cannot  place  such  construction  on  this  portion  of 
Justice  Stone's  opinion.     He  had  already  said : 

"A  contempt  consists  as  well  in  the  manner  of  the  person 
committing  it  as  in  the  subject  matter  of  its  foundation;  matters 
which,  if  true,  would  in  their  very  nature  be  scandalous,  may  be 
presented,  hinted  at  or  brought  to  the  attention  of  the  court  in  so 
respectful  a  manner  that  no  judge  would  ever  think  to  construe  a 
contempt  therefrom;  while,  on  the  other  hand,  it  is  easy  to  see, 
when  under  the  guise  and  pretense  of  setting  out  privileged  and 
necessary  matters,  circumstances  are  detailed  and  scandalous  and 
insulting  charges  and  innuendoes  are  made  and  insinuated  upon 
pretended  'information  and  belief  in  a  manner  that  bears  the 
unmistakable  earmarks  of  malice  and  deliberate  contempt. 

"These  remarks,  we  think,  will  indicate  sufficiently  clear  the 
path  which  each  attorney  is  expected  to  advise  and  follow  in  choos- 
ing the  language  he  employs  in  papers  filed  in  court,  as  well  as  in 
speech  addressed  directly  to  the  judge." 

This  explains  the  words  quoted  as  declaring  that  the 
proof  of  the  truth  of  the  matter  charged  in  an  alleged  con- 
temptuous paper  filed  in  the  court  is  not  a  justification. 
Taken  all  together  it  is  not  authority  for  the  opinion  in  this 
case,  but  is  simply  a  holding  that  the  attorney  who  presents 
a  paper  to  a  court  must  use  language,  if  possible,  that  is 
not  scandalous;  and  that  he  should,  rather  than  relate  a 
plain,  unvarnished  tale,  hint  at  such  matters  and  gloss  them 
in  such  a  way  that  a  discriminating  judge  will  not  deem 
the  language  contemptuous.  But  it  is  not  possible  to 
use  this  case  as  authority  for  holding  that  under  no  circum- 
stances is  the  truth  a  justification;  for,  suppose  that  an 
attorney  has  merely  hinted  at  a  scandalous  matter,  and  the 
judge  has  cited  him  for  contempt,  and  as  a  justification  the 
attorney  offers  to  prove  the  truth.  There  is  positively  noth- 
ing in  the  opinion  which  would  justify  the  court  in  denying 
the  attorney  the  right  to  prove  such  matters  in  justification. 


igS  ROBERT    WILBUR    STEELE 

In  the  case  Mullin  vs.  People,  15  Colorado,  437, 
MuUin  had  prepared  a  petition  for  a  change  of  venue, 
wherein  he  set  forth,  among  other  things,  that  the  wife  of 
the  judge  had,  just  before  the  trial  of  a  certain  cause,  told 
him  that  she  must  return  home  at  once  and  see  the  judge 
and  arrange  with  him  to  have  Mrs.  Davis  win  her  case; 
that  Mrs.  Davis  did  win  the  case ;  and  that,  as  he  was  inter- 
ested in  the  same  litigation,  although  in  another  suit,  he 
feared  that  the  judge  would  be  prejudiced  against  him  and 
he  asked  to  have  the  venue  of  the  cause  changed.  After 
stating  that  the  statute  requires  the  petitioner,  in  cases  where 
the  change  of  venue  is  asked  on  account  of  the  prejudice  of 
the  judge,  to  set  forth  the  facts  upon  which  he  bases  his 
fears  that  he  will  not  receive  a  fair  trial,  Mr.  Justice  Hayt, 
who  delivered  the  opinion  of  the  court,  said : 

"Assuming,  then,  for  the  purposes  of  this  case,  that  the  wife  of 
the  presiding  judge  made  the  statement  attributed  to  her,  plaintiff 
in  error  had  the  undoubted  right  to  embody  such  statement  in  his 
petition  for  a  change  of  venue  without  subjecting  himself  to  being 
punished  for  contempt.  The  principal  ground  relied  upon  to  sus- 
tain the  action  of  the  court  below  therefore  fails.  Had  it  been 
charged  that  the  affidavit  was  false  in  this  respect,  and  that  such 
false  statements  were  made  willfully  and  maliciously,  as  argued,  a 
different  case  would  have  been  presented." 

This  case  seems  to  hold  that  in  a  petition  for  change 
of  venue  the  party  seeking  the  change  may  set  out  the  rea- 
sons upon  which  he  bases  his  fears  that  he  will  not  receive 
a  fair  trial,  and  that,  if  the  statements  therein  contained  are 
true,  he  is  not  subject  to  punishment  for  contempt. 

John  Peter  Zenger  was  tried  for  a  defamatory  publica- 
tion of  certain  public  officials  in  New  York  in  1735. 
Andrew  Hamilton  defended  him.  Speaking  of  the  effect  of 
censuring  those  in  power,  Hamilton  said : 

"It  is  said  that  it  brings  the  rulers  of  the  people  into  contempt 
so  that  their  authority  is  not  regarded,  and  so  that  in  the  end  the 
laws  cannot  be  put  into  execution.  These,  I  say,  and  such  as  these, 
are  the  general  topics  insisted  upon  by  men  in  power  and  by  their 


THE    OPINION    IN    THE    PATTERSON    CASE  I99 

advocates.  But  I  wish  it  might  be  considered  at  the  same  time  how 
it  often  has  happened  that  the  abuse  of  power  has  been  the  primary 
cause  of  these  evils,  and  that  it  was  the  injustice  and  oppression  of 
these  great  men  which  has  commonly  brought  them  into  contempt 
with  the  people.  The  craft  and  art  of  such  men  are  great,  and 
who  that  is  the  least  acquainted  with  history  or  with  law  can  be 
ignorant  of  the  specious  pretenses  which  have  often  been  made  use 
of  by  men  in  power  to  introduce  arbitrary  power  and  destroy  the 
liberties  of  a  free  people?     *     *     * 

"But,  to  conclude,  the  question  before  the  court  and  you,  gentle- 
men of  the  jury,  is  not  of  small  nor  private  concern;  it  is  not  the 
cause  of  a  poor  printer  nor  of  New  York  alone  which  you  are  now 
trying.  No!  It  may,  in  its  consequences,  affect  every  free  man 
that  lives  under  a  British  government  on  the  main  continent  of 
America.  It  is  the  best  cause;  it  is  the  cause  of  liberty;  and  I  make 
no  doubt  but  your  upright  conduct  this  day  will  not  only  entitle 
you  to  the  love  and  esteem  of  your  fellow  citizens,  but  every  man 
who  prefers  freedom  to  a  life  of  slavery  will  bless  and  honor  you 
as  men  who  have  baffled  the  attempt  of  tyranny,  and,  by  an  impar- 
tial and  uncorrupt  verdict,  have  laid  a  noble  foundation  for  secur- 
ing to  ourselves,  our  posterity  and  our  neighbors  that  to  which 
nature  and  the  laws  of  our  country  have  given  us  a  right — the 
liberty  of  exposing  and  opposing  arbitrary  power  (in  these  parts 
of  the  world,  at  least)   by  speaking  and  writing  truth." 

Through  the  efforts  of  Hamilton,  Zenger  was  acquitted 
in  spite  of  the  judge's  efforts ;  and  this  at  a  time  when  the 
truth  was  not  a  defense  to  such  an  action.  Gouverneur 
Morris  is  said  to  have  stated  that,  instead  of  dating  Ameri- 
can liberty  from  the  Stamp  act,  he  traced  it  to  the  persecu- 
tion of  Zenger;  because  that  event  revealed  the  philosophy 
of  freedom,  both  of  thought  and  speech  as  an  inborn  human 
right,  so  nobly  set  forth  in  Milton's  speech  for  the  liberty 
of  unlicensed  printing. 

Harry  Croswell,  the  publisher  of  a  newspaper  at  Hud- 
son, N.  Y.,  was  convicted  for  libeling  Thomas  Jefferson, 
the  then  president  of  the  United  States.  The  case  was  taken 
to  the  Supreme  Court.  It  has  attracted  great  attention,  not 
only  because  of  the  importance  of  the  questions  raised,  but 
because  of  the  eminence  of  court  and  counsel.  The 
lower  court  had  refused  to  instruct  the  jury  that  it  was  the 
judge  of  the  law  and  fact,  and  that  the  truth  was  a  justi- 


200  ROBERT    WILBUR    STEELE 

iication.     The  case  is  reported  in  3  Johnson's  Cases,  page 

323.    In  opening  the  case,  counsel  for  Croswell  said : 

"The  opposite  doctrine,  which  maintains  that  a  writing  is 
equally  libelous,  whether  true  or  false,  originated  in  a  polluted 
source,  the  despotic  tribunal  of  the  star  chamber.  (Moore,  627,  5 
Co.,  125.)  *  *  *  The  star  chamber  had  no  authority  to  alter 
the  common  law.  Our  ancestors,  when  they  emigrated  to  this  coun- 
try, brought  with  them  the  common  law  as  their  inheritance  and 
birthright,  and  one  of  the  earliest  acts  of  our  colonial  legislature 
was  to  assert  their  claim  to  the  enjoyment  of  the  common  law. 
*  *  *  The  doctrine  which  will  be  contended  for  on  the  other 
side,  that  the  truth  cannot  be  given  in  evidence,  and  is  in  no  case  to 
justify  libel,  although  it  should  be  promulgated  with  the  purest 
motives,  is  repugnant  to  the  first  principles  of  policy  and  justice 
and  contrary  to  the  genius  of  a  free  representative  public.  Freedom 
of  discussion  and  a  freedom  of  the  press,  under  the  guidance  and 
sanction  of  truth,  are  essential  to  the  liberties  of  our  country,  and 
to  enable  the  people  to  select  their  rulers  with  discretion  and  to 
judge  correctly  of  their  merits." 

General  Alexander  Hamilton  appeared   for   Croswell. 
He  said,  in  the  closing  argument : 

"The  liberty  of  the  press  consists,  in  my  idea,  in  publishing  the 
truth,  from  good  motives  and  for  justifiable  ends,  though  it  reflect 
on  government,  magistrates  or  individuals.  If  it  be  not  allowed  it 
excludes  the  privilege  of  canvassing  men  and  our  rulers.  It  is  in 
vain  to  say  you  may  canvass  measures.  This  is  impossible  without 
the  right  of  looking  to  men.  To  say  that  measures  can  be  discussed, 
and  that  there  shall  be  no  bearing  on  those  who  are  the  authors  of 
those  measures,  cannot  be  done.  The  very  end  and  reason  of  dis- 
cussion would  be  destroyed.  Of  what  consequence  to  show  its 
object?  Why  is  it  thus  to  be  demonstrated,  if  not  to  show,  too,  who 
is  the  author?  It  is  essential  to  sa}',  not  only  that  the  measure  is 
bad  and  deleterious,  but  to  hold  up  to  the  people  who  is  the  author, 
that,  in  this  our  free  and  elective  government,  he  may  be  removed 
from  the  seat  of  power.  If  this  be  not  done,  then  in  vain  will  the 
voice  of  the  people  be  raised  against  the  inroads  of  tyranny.  *  *  * 
But  if,  under  the  qualifications  I  have  mentioned,  the  power  be 
allowed,  the  liberty  for  which  I  contend  will  operate  as  a  salutary 
check.  In  speaking  thus  for  the  freedom  of  the  press,  I  do  not  say 
there  ought  to  be  an  unbridled  license,  or  that  the  characters  of 
men  who  are  good  will  naturally  tend  eternally  to  support  them- 
selves. I  do  not  stand  here  to  say  that  no  shackles  are  to  be  laid 
on  this  license. 

"I  consider  this  spirit  of  abuse  and  calumny  as  the  pest  of 
society.  I  know  the  best  of  men  are  not  exempt  from  the  attacks  of 
slander.  Though  it  pleased  God  to  bless  us  with  the  first  of  char- 
acters, and  though  it  has  pleased  God  to  take  him  from  us  and  this 
band  of  calumniators,  I  say  that  falsehood  eternally  repeated  would 


THE    OPINION    IN    THE    PATTERSON    CASE  201 

have  affected  even  his  name.  Drops  of  water,  in  long  and  contin- 
ued succession,  will  wear  out  adamant.  This,  therefore,  cannot  be 
endured.  It  would  be  to  put  the  best  and  the  worst  on  the  same 
level. 

"I  contend  for  the  liberty  of  publishing  truth,  with  good  motives 
and  for  justifiable  ends,  even  though  it  reflect  on  government,  mag- 
istrates or  private  persons.  I  contend  for  it  under  the  restraint  of 
our  tribunals.  When  this  is  exceeded  let  them  interpose  and  pun- 
ish. From  this  will  follow  none  of  those  consequences  so  ably 
depicted.  When,  however,  we  do  look  at  consequences,  let  me  ask 
whether  it  is  right  that  a  permanent  body  of  men,  appointed  bj'  the 
executive  and  in  some  degree  always  connected  with  it,  should 
exclusively  have  the  power  of  deciding  on  what  shall  constitute  a 
libel  on  our  rulers,  or  that  they  shall  share  it  united  with  a  change- 
able body  of  men  chosen  by  the  people?  Let  our  juries  be  selected, 
as  they  now  are,  by  lot.  But  it  cannot  be  denied  that  every  body  of 
men  is,  more  or  less,  liable  to  be  influenced  bj-  the  spirit  of  the 
existing  administration;  that  such  a  body  may  be  liable  to  corrup- 
tion and  that  they  may  be  Inclined  to  lean  over  towards  party 
modes.  No  man  can  think  more  highly  of  our  judges,  and  I  may 
say  personally  so  of  those  who  now  preside,  than  myself;  but  I 
must  forget  what  human  nature  is  and  how  her  history  has  taught 
us  that  permanent  bodies  may  be  so  corrupted,  before  I  can  venture 
to  assert  that  it  cannot  be.  As  then  it  may  be,  I  do  not  think  it  safe 
thus  to  compromise  our  independence.  For  though,  as  individuals, 
the  judges  may  be  interested  in  the  general  welfare,  yet  if  once 
they  enter  into  these  views  of  government  their  power  may  be 
converted  into  an  engine  of  oppression.  It  is  in  vain  to  say  that 
allowing  them  this  exclusive  right  to  declare  the  law  on  what  the 
jury  has  found  can  work  no  ill;  for,  by  this  privilege,  they  can 
assume  and  modify  the  fact  so  as  to  make  the  most  innocent  publi- 
cation libelous.  It  is,  therefore,  not  a  security  to  say  that  this 
exclusive  power  will  but  follow  the  law.  *  *  *  Passages  have 
been  adduced  from  Lord  Mansfield's  declarations  to  show  that 
judges  cannot  be  under  the  influence  of  an  administration.  Yet 
still  it  would  be  contrary  to  our  own  experience  to  say  that  they 
could  not.  I  do  not  think  that  even  as  to  our  own  country  it  may  not 
be.  There  are  always  motives  and  reasons  that  may  be  held  up. 
It  is  therefore  still  more  necessary  here  to  mingle  this  power  than 
in  England.  The  person  who  appoints  there  is  hereditary.  That 
person  cannot  alone  attack  the  judiciary;  he  must  be  united  with 
the  two  houses  of  lords  and  of  commons  in  assailing  the  judges. 
But  with  us  it  is  the  vibration  of  party.  As  one  side  or  the  other 
prevails,  so  of  that  class  and  temperament  will  be  the  judges  of 
their  nomination.  Ask  an}-  man,  however  ignorant  of  principles  of 
government,  who  constitute  the  judiciarj-;  he  will  tell  you  the 
favorites  of  those  at  the  head  of  affairs.  According,  then,  to  the 
theory  of  this,  our  free  government,  the  independence  of  our  judges 
is  not  so  well  secured  as  in  England.  We  have  here  reasons  for 
apprehension  not  applicable  to  them.  We  are  not,  however,  to  be 
influenced  by  the  preference  to  one  side  or  the  other.     But  of  which 


202  ROBERT  WILBUR  STEELE 

side  soever  a  man  may  be,  it  interests  all  to  have  the  question 
settled  and  to  uphold  the  power  of  the  jury,  consistently,  however, 
with  liberty,  and  also  with  legal  and  judicial  principles,  fairly  and 
rightly  understood.  None  of  these  impair  that  for  which  we  con- 
tend— the  right  of  publishing  the  truth,  from  good  motives  and 
justifiable  ends,  though  it  reflect  on  government,  on  magistrates,  or 
individuals. 

"Some  observations  have,  however,  been  made  in  opposition  to 
these  principles.  It  is  said  that,  as  no  man  rises  at  once  high  into 
office,  every  opportunity  of  canvassing  his  qualifications  is  afforded, 
without  recourse  to  the  press ;  that  his  first  election  ought  to  stamp 
the  seal  of  merit  on  his  name.  This,  however,  is  to  forget  how 
often  the  hypocrite  goes  from  stage  to  stage  of  public  fame,  under 
false  array,  and  how  often,  when  men  obtain  the  last  object  of  their 
wishes,  they  change  from  that  which  they  seemed  to  be ;  that  men, 
the  most  zealous  reverers  of  the  people's  rights,  have,  when  placed 
on  the  highest  seat  of  power,  become  their  most  deadly  oppressors. 
It  becomes,  therefore,  necessary  to  observe  the  actual  conduct  of 
those  who  are  thus  raised  up. 

******* 

"I  affirm  that,  in  the  general  course  of  things,  the  disclosure  of 
truth  is  right  and  prudent  when  liable  to  the  checks  I  have  been 
willing  it  should  receive  as  an  object  of  animadversion.  It  cannot 
be  dangerous  to  government,  though  it  may  work  partial  difficulties. 
If  it  be  not  allowed  they  will  stand  liable  to  encroachments  on  their 
rights.  It  is  evident  that  if  you  cannot  apply  this  mitigated  doc- 
trine, for  which  I  speak,  to  the  cases  of  libels  here,  you  must  forever 
remain  ignorant  of  what  your  rulers  do.  I  never  can  think  this 
ought  to  be;  I  never  did  think  the  truth  was  a  crime;  I  am  glad  the 
day  has  come  in  which  it  is  to  be  decided,  for  my  soul  has  ever 
abhorred  the  thought  that  a  free  man  dared  not  speak  the  truth; 
I  have  forever  rejoiced  when  this  question  has  been  brought  for- 
ward. 

******* 

"It  is  impossible  to  say  that  to  judge  of  the  quality  and  nature 
of  an  act  the  truth  is  immaterial.  It  is  inherent  in  the  nature  of 
things  that  the  assertion  of  truth  cannot  be  a  crime.  In  all  systems 
of  law  this  is  a  general  axiom,  but  this  single  instance,  it  is 
attempted  to  assert,  creates  an  exception,  and  is  therefore  an  anom- 
aly. If,  however,  we  go  on  to  examine  what  may  be  the  case  that 
shall  be  so  considered,  we  cannot  find  it  to  be  this. 

******* 

"It  is  true  that  the  doctrine  originated  in  one  of  the  most 
'oppressive  institutions  that  ever  existed;  in  a  court  whose  oppres- 
sions roused  the  people  to  demand  its  abolition,  whose  horrid  judg- 
ments cannot  be  read  without  freezing  the  blood  in  one's  veins. 
This  is  not  used  as  declamation,  but  as  argument.  If  doctrine  tends 
to  trample  on  the  liberty  of  the  press,  and  if  we  see  it  coming  from 
a  foul  source,  it  is  enough  to  warn  us  against  polluting  the  stream 
of   our   own   jurisprudence.      It   is   not   true   that   it   was    abolished 


THE    OPINION    IN    THE    PATTERSON    CASE  20,3 

merely  for  not  using  the  intervention  of  juries,  or  because  it  pro- 
ceeded ex  parte — though  that,  God  knows,  would  have  been  reason 
enough — or  because  its  functions  were  discharged  by  the  court  of 
king's  bench.  It  was  because  its  decisions  were  cruel  and  tyranni- 
cal; because  it  bore  down  the  liberties  of  the  people,  and  inflicted 
the  most  sanguinary  punishments.  It  is  impossible  to  read  its  sen- 
tences without  feeling  indignation  against  it.  This  will  prove  why 
there  should  not  be  a  paramount  tribunal  to  judge  of  these  matters." 

Mr.   Justice   Kent,   in   an   opinion,    sustained   General 
Hamilton  and  adopted  his  views.    He  said  in  part  : 

"Mr.  Barrington  (Observations  on  the  Statutes,  68)  has  given 
us  a  part  of  a  curious  letter,  written  at  that  time  by  the  dean  of 
St.  Paul's,  from  which  we  may  infer  his  alarm  and  disgust  at  the 
new  libel  doctrines  of  the  star  chamber.  There  be  many  cases,' 
he  observes,  'where  a  man  may  do  his  country  good  service  by 
libeling;  for  where  a  man  is  either  too  great  or  his  vices  too  general 
to  be  brought  under  a  judiciary  accusation,  there  is  no  way  but 
this  extraordinary  method  of  accusation.'     *     *     * 

"It  appears  clear,  from  this  historical  survey,  that  the  doctrine 
now  under  review  originated  in  the  court  of  star  chamber,  and  was 
introduced  and  settled  there  about  the  beginning  of  the  reign  of 
James  I.  (Breverton's  Case,  2  Jac,  1,  and  the  case  in  5  Co.,  125,  3 
Jac.  1,  both  settled  the  rule.)  It  was,  no  doubt,  considered  at  that 
time  as  an  oppressive  innovation,  but  opposition  must  have  been 
feeble  to  a  court  whose  action  and  whose  terrors  were  then  at  the 
greatest  height,  and  which  exercised  its  superlative  powers  (as 
Hudson  terms  them)  with  enormous  severity.  The  principle  was, 
however,  received  in  after  times  with  jealousy  and  scrutiny,  as 
coming  without  the  sanction  of  legitimate  authority,  and  it  was  not 
to  be  expected  that  a  people  attached  to  the  mild  genius  of  the 
common  law,  of  which  trial  by  jury  in  criminal  cases  is  one  of  its 
most  distinguished  blessings,  would  willingly  receive  the  law  and 
limits  of  the  press  from  the  decrees  of  so  odious  and  tyrannical  a 
jurisdiction.     *     *     * 

"The  first  American  congress,  in  1774,  in  one  of  their  public 
addresses  (Journals,  vol.  1,  p.  57),  enumerated  five  invaluable 
rights,  without  which  a  people  cannot  be  free  and  happy,  and  under 
the  protecting  and  encouraging  influence  of  which  these  colonies 
had  hitherto  so  amazingly  flourished  and  increased.  One  of  these 
rights  was  the  freedom  of  the  press,  and  the  importance  of  this 
right  consisted,  as  they  observed,  'besides  the  advancement  of  truth, 
science,  morality  and  arts  in  general,  in  its  diffusion  of  liberal  senti- 
ments on  the  administration  of  government,  its  ready  communication 
of  thoughts  between  subjects,  and  its  consequential  promotion  of 
union  among  them,  whereby  oppressive  officers  are  shamed  or 
intimidated  into  more  honorable  and  just  modes  of  conducting 
affairs.'     *     *     * 

"I  have  thus  shown  that  the  rule  denying  permission  to  give 
the  truth  in  evidence  was  not  an  original  rule  of  the  common  law. 


204  ROBERT  WILBUR  STEELE 

The  ancient  statutes  and  precedents,  which  are  the  only  memorials 
to  which  we  can  resort,  all  place  the  crime  on  its  falsity.  The  court 
of  star  chamber  originated  the  doctrine,  and  it  was  considered  an 
innovation.  When  it  was  brought  into  a  court  of  common  law  it 
was  resisted  and  denied;  the  court  dared  not  practice  upon  it,  and 
the  jury  gave  it  their  negative.  Lord  Holt  totally  disregarded  the 
rule,  in  the  case  of  Fuller;  and  it  did  not  become  an  express  deci- 
sion of  a  court  of  common  law  till  Franklin's  case,  in  1731;  and 
there  the  counsel  made  a  zealous  struggle  against  it,  as  new,  dan- 
gerous and  arbitrary.  In  the  trial  of  Home,  Lord  Mansfield  laid 
the  rule  aside,  and  the  counsel  for  the  crown  rejoiced  at  an  oppor- 
tunity to  meet  the  defendant  upon  the  merits  of  the  accusation.  In 
1792  it  was  made  a  questionable  point  in  the  house  of  lords,  and  one 
of  the  highest  law  characters  in  the  house  seems  to  have  borne  his 
testimony  against  it.  I  feel  myself,  therefore,  at  full  libertj'  to 
examine  this  question  upon  principle,  and  to  lay  the  doctrine  aside, 
if  it  shall  appear  unjust  in  itself,  or  incompatible  with  public  liberty 
and  the  rights  of  the  press.     *     *    * 

"I  adopt  in  this  case,  as  perfectly  correct,  the  comprehensive 
and  accurate  definition  of  one  of  the  counsel  at  the  bar  (General 
Hamilton),  that  the  liberty  of  the  press  consists  in  the  right  to 
publish,  with  impunity,  truth,  with  good  motives  and  for  justifiable 
ends,  whether  it  respects  government,  magistracy  or  individuals." 

In  the  case  of  King  vs.  Root,  4  Wend.,  1 14,  the  trial 
court  instructed  the  jury  upon  the  liberty  of  the  press,  as 
follows : 

"A  vigilant  watch  should  be  kept  over  the  editors  of  our  jour- 
nals to  prevent  them  becoming  vehicles  for  the  indulgence  of 
private  resentment.  Yet,  however  aggravated  the  practice  of  tra- 
ducing character  so  openly  and  virulently  through  the  press  may 
become,  you  must  be  cautious  not  to  let  your  anxiety  to  check  a 
great  evil  lead  you  to  do  a  great  wrong  to  these  defendants,  *  *  * 
and  in  seeking  to  restrain  the  licentiousness  of  the  press,  you  will 
be  careful  not  to  trammel  fair  discussion  nor  punish  the  truth, 
however  painful  it  may  be  to  those  of  whom  it  is  published." 

The  judgment  was  affirmed  and  this  instruction  was 
approved. 

Horace  Greeley  was  defendant  in  a  suit  for  defama- 
tion. He  pleaded  that  the  articles  published  by  him  were 
true.    In  passing  upon  a  preliminary  motion,  the  court  said: 

"The  press  is  allowed  to  comment  fully  and  freely  upon  public 
characters,  from  the  president  down,  and  to  utter  those  things  with 
the  utmost  freedom ;  to  charge  official  men  with  incompetency  and 
imbecility,  with  ignorance  or  corruption;  to  charge  judges  with 
ignorance,  incompetency  or  venality,  and  the  proof  of  any  of  these 


Robert  Wilbur  Steele 
(From  photograph,  1900) 


THE    OPINION    IN    THE    PATTERSON    CASE  205 

allegations  is  a  perfect  defense.  But  the  press  has  no  right,  under 
its  guaranteed  freedom,  to  publish  what  is  not  true."  (Littlejohn 
vs.  Greeley,  13  Abbott's  Pr.,  41.) 

In  the  case  of  Negley  vs.  Farrow,  60  Md.,  158,  at  page 
176,  the  court,  through  Robinson,  justice,  says  : 

"No  one  denies  the  right  of  the  defendants  to  discuss  and  criti- 
cise boldly  and  fearlessly  the  official  conduct  of  the  plaintiff.  It  is 
a  right  vyhich  in  every  free  country  belongs  to  the  citizen,  and  the 
exercise  of  it,  within  lawful  and  proper  limits,  affords  some  protec- 
tion at  least  against  official  abuse  and  corruption.  But  there  is  a 
broad  distinction  between  fair  and  legitimate  discussion  in  regard 
to  the  conduct  of  a  public  man  and  the  imputation  of  corrupt 
motives  by  which  that  conduct  may  be  supposed  to  be  governed. 
And  if  one  goes  out  of  his  way  to  asperse  the  personal  character  of 
a  public  man  and  to  ascribe  to  him  base  and  corrupt  motives,  he 
must  do  so  at  his  peril,  and  must  either  prove  the  truth  of  what  he 
says,  or  answer  in  damages  to  the  party  injured." 

In  the  case  of  State  vs.  Frew,  24  West  Virginia,  416, 

Mr.  Justice  Snyder,  one  of  the  justices  of  the  court,  said: 

"Having  thus  shown  that  the  court  has  the  power  to  punish 
for  contempts,  it  must  not  be  overlooked  that  this  power  can  be 
justified  by  necessity  alone,  and  should  rarely  be  exercised,  and 
never  except  when  the  necessity  is  plain  and  unmistakable.  It  is 
not  given  for  the  private  advantage  of  the  judges  who  sit  in  the 
court,  but  to  preserve  to  them  that  respect  and  regard,  of  which 
courts  cannot  be  deprived  and  maintain  their  usefulness.  It  is 
given  that  the  law  may  be  administered  fairly  and  impartially, 
uninterrupted  by  any  influence  which  might  affect  the  rights  of  the 
parties  or  bias  the  minds  of  the  judges,  that  the  court  may  command 
that  respect  and  sanctity  so  essential  to  make  the  law  itself 
respected,  and  that  the  streams  of  justice  may  be  kept  pure  and 
uncorrupted.  *  *  *  The  public  have  a  profound  interest  in  the 
good  name  and  fame  of  their  courts  of  justice,  and  especially  of  the 
courts  of  last  resort.  Everything  that  affects  the  well-being  of 
organized  society,  the  rights  of  property,  and  the  life  and  liberty 
of  the  citizen,  is  submitted  to  their  final  decision.  The  confidence 
of  the  public  in  the  judiciary  should  not  be  wantonly  impaired.  It 
is  all-important  to  the  due  and  efficient  administration  of  justice 
that  the  courts  of  last  resort  should  possess  in  a  full  measure  the 
entire  confidence  of  the  people  whose  laws  they  administer.  All 
good  citizens  will  admit  that  he  who  willfully  and  wantonly  assails 
the  courts  by  groundless  accusations,  and  thereby  weakens  the  public 
confidence  in  them,  commits  a  great  wrong,  not  alone  against  the 
courts,  but  against  the  people  of  the  state.  It  must  be  and  is  cheer- 
fully conceded  that  public  journals  have  the  right  to  criticise  freely 
the   acts   of   all   public  officers — executive,   legislative   and   judicial. 


206  ROBERT  WILBUR  STEELE 

It  is  a  constitutional  privilege  that  even  the  legislature  cannot 
abridge.  But  such  criticism  should  always  be  just  and  with  a  view 
to  promote  the  public  good.  Where  the  conduct  of  a  public  officer 
is  willfully  corrupt,  no  measure  of  condemnation  can  be  too  severe, 
but  when  the  misconduct,  apparent  or  real,  may  be  simply  an  honest 
error  of  judgment  the  condemnation  ought  to  be  withheld  or  min- 
gled with  charity." 

This  is  one  of  the  cases  cited  by  the  court  in  support 
of  its  position  in  this  case.  Yet  by  the  use  of  the  adverb 
wantonly  and  of  the  adjective  groundless  it  would  seem 
that,  in  the  opinion  of  this  justice,  if  the  accusation  were 
not  wantonly  made  and  were  not  groundless,  no  contempt 
would  have  been  committed.  He  also  appears  to  favor 
severe  condemnation  of  those  public  officers  who  are  will- 
fully corrupt.  The  justices  were  careful  to  state  that  they 
had  been  falsely  charged,  and  one  of  the  judges  insisted 
that  the  attorneys  should  have  been  fined  because  they  must 
have  known  that  the  answer  filed  was  false. 

My  brother  Gunter  relies  upon  the  case  in  re  Moore 
et  al.,  63  North  Carolina,  397,  decided  in  the  year  1869,  as 
supporting  one  of  the  positions  taken  by  the  court  in  this 
case.  In  that  case  more  than  one  hundred  members  of  the 
bar  signed  and  published  a  protest,  entitled  "A  Solemn 
Protest  of  the  Bar  of  North  Carolina  Against  Judical  Inter- 
ference in  Political  Affairs."  The  protest  declared,  among 
other  things,  that 

"Active  and  open  participation  in  the  strife  of  political  contests 
by  any  judge  of  the  state,  so  far  as  we  recollect,  or  tradition  or 
history  has  informed  us,  was  unknown  to  the  people  until  the  late 
exhibitions.  To  say  that  these  were  wholly  unexpected,  and  that  a 
prediction  of  them  by  the  wisest  among  us  would  have  been  spurned 
as  incredible,  would  not  express  half  our  astonishment,  or  the  pain- 
ful shock  suffered  by  our  feelings  when  we  saw  the  humiliating 
fact  accomplished.  *  *  *  Many  of  us  have  passed  through 
political  times  almost  as  excited  as  those  of  today;  and  most  of  us, 
recently,  through  one  more  excited;  but  never  before  have  we  seen 
the  judges  of  the  Supreme  Court,  singly  or  en  masse,  moved  from 
that  becoming  propriety  so  indispensable  to  secure  the  respect  of 
the  people,  and,  throwing  aside  the  ermine,  rush  into  the  mad  con- 
test of  politics  under  the  excitement  of  drums  and  flags.     From  the 


THE    OPINION    IN    THE    PATTERSON    CASE  207 

unerring  lessons  of  the  past  we  are  assured  that  a  judge  who  openly 
and  publicly  displays  his  political  party  zeal  renders  himself  unfit 
to  hold  'the  balance  of  justice,'  and  that  whenever  an  occasion  may 
offer  to  serve  his  fellow  partisans  he  will  jield  to  the  temptation 
and  the  'wavering  balance'  will  shake." 

This  article  was  held  to  be  libelous  because  false,  and 

contemptuous  because  libelous.     The  court  said : 

"The  only  allegation  of  fact  on  which  this  'solemn  protest' 
rests  is  that  'the  judges,  single  and  en  masse,  did  rush  into  the  mad 
contest  of  politics  under  the  excitement  of  drums  and  flags.'  Is  this 
allegation  of  fact  true  or  is  it  false?  There  is  no  pretense  that  it  is 
true.  It  is  said  this  is  a  figure  of  speech,  suggested  by  something 
that  was  expected  to  occur  but  never  did  occur;  so  the  allegation  of 
fact  is  false  and  the  inference  drawn  from  it  is  also  false.  In  our 
judgment  the  paper  is  libelous  and  'doth  tend  to  impair  the  respect 
due  to  the  authority  of  the  court.'  " 

No  case  from  America,  since  the  constitutional  provi- 
sions concerning  free  speech  and  the  printing  press  have 
been  in  force,  has  been  cited  in  which  a  judge  has  under- 
taken to  punish  as  for  contempt  statements  such  as  these. 
A  redeeming  feature  of  this  case  is  that  the  respondents  did 
not  retract  or  apologize,  and  were  not  punished ;  and  that 
the  court  held  that  to  publish  such  an  article  is  not  contempt 
unless  it  is  false. 

In  the  Wyatt  case  the  court  held  that  the  legislature 
had  not  undertaken  to  control  the  procedure  in  criminal 
contempt  because  the  statute  on  the  subject  was  contained 
in  the  civil  code.  It  recommended,  however,  a  substantial 
compliance  with  the  code  provisions  in  cases  of  criminal 
contempt. 

In  the  Stapleton  case  the  court  did  not  declare  that  the 

legislature  could  not  legislate  upon  the  subject  of  contempt, 

but  expressly  declares  that,  as  it  had  not  done  so,  the  court 

had  the  common  law  power  of  punishing  for  constructive 

contempt.      Mr.    Justice    Elliott    said,    quoting    from    the 

Hughes  case : 

"Such  a  statutory  enumeration  of  causes  as  is  found  in  our 
code,   when    applied    to   the    ever   varying   facts   and   circumstances 


208  ROBERT    AVILBUR    STEELE 

out  of  which  questions  of  contempt  arise,  cannot  be  taken  as  the 
arbitrary  measure  and  limit  of  the  inherent  power  of  a  court  for 
its  own  preservation,  and  for  that  proper  dignity  of  authority  which 
is  essential  to  the  effective  administration  of  law. 

"The  Hughes  case  was  based  upon  the  Code  of  1877,  which 
was  repealed  in  1887.  Chapter  30  of  the  present  code  is,  however, 
a  substantial  re-enactment  of  the  former  provisions  relating  to  con- 
tempt proceedings.  These  provisions  were  re-enacted  more  than 
six  years  after  the  announcement  of  the  decision  in  the  Hughes  case. 
Thus  by  a  well  known  rule  of  statutory  construction  it  must  be 
presumed  that  the  legislature  had  knowledge  of  and  were  satisfied 
with  the  construction  given  to  such  provisions,  and  so  re-enacted 
them  without  change.  (Harvey  vs.  Travelers'  Insurance  Company, 
ante,  354.)  Moreover,  neither  in  the  code  of  1877  nor  in  the  present 
code  are  there  anj^  negative  or  other  qualifying  words  limiting  con- 
tempts to  such  causes  as  are  therein  specified." 

This  language  cannot  be  misunderstood,  and  the  court 
has,  in  this  case,  in  effect,  overruled  the  Stapleton  case,  for 

it  says : 

"We  do  not  desire  to  intimate  by  the  excerpt  from  People  vs. 
Stapleton  that  it  would  be  competent  for  the  legislature  to  limit  the 
power  of  courts,  created  by  the  constitution,  in  reference  to  either 
civil  or  criminal  contempt." 

Instead  of  accepting  the  decisions  of  this  court  as  a 
warning  that  the  court  had  already  taken  all  the  power 
necessary  for  its  existence,  it  goes  beyond  that  and  intimates, 
if  it  does  not  hold,  that  the  subject  of  contempt  is  one  over 
which  the  legislature  has  no  control.  Colorado  has  thus 
joined  the  group  of  states  consisting  of  Arkansas,  West 
Virginia,  Virginia,  Georgia  and  Missouri  in  declaring  that 
necessity — a  necessity  essential  to  the  very  existence  of  the 
court — requires  that  the  legislature  should  not  legislate  upon 
the  subject  of  contempt.  How  the  federal  courts  and  the 
courts  of  the  other  thirty-nine  states  have  managed  to  exist 
for  lo !  these  many  years  without  this  essential  power  is  not 
explained  in  the  opinion. 

I  shall  not  discuss  the  proposition  that  the  common  law 
powers  cannot  be  taken  from  the  courts  created  by  the  con- 
stitution by  legislative  enactment,  further  than  to  say  that, 


THE    OPINION    IN    THE    PATTERSON    CASE  2O9 

as  the  constitution  that  created  the  court  adopted  the  com- 
mon law  only  until  altered  or  repealed  by  the  general 
assembly,  it  would  seem  to  follow  that  it  is  within  the  power 
of  the  legislature  to  take  away  any  power  not  expressly 
granted  by  the  constitution. 

Although  the  court  is  sustained,  in  part,  by  the  courts 
of  the  states  mentioned,  this  court  stands  alone  in  holding 
that  the  truth  is  ivimatenal.  In  Georgia  and  Virginia  the 
contempt  was  of  an  entirely  different  character.  In  Arkan- 
sas the  court  says  that  one  is  punishable  for  contempt  who 
wantonly  attempts  to  obstruct  public  justice;  and  in  West 
Virginia  the  court  speaks  of  groundless  accusations  made 
against  the  court  as  being  contemptuous,  while  in  Missouri 
the  court  squarely  holds  that  the  power  to  punish  is  limited 
to  those  who  tell  an  untruth.  The  doctrine  that  "the  truth 
is  immaterial"  comes,  as  Kent  and  Hamilton  say,  from  a 
polluted  source,  the  obnoxious  star  chamber,  and  it  was 
undoubtedly  the  cowardly  conception  of  corrupt  officials  as 
a  means  of  shielding  themselves  from  exposure,  and  why 
it  should  be  revived  in  this  day  and  generation  is  beyond 
my  understanding. 

The  court  disposes  of  the  contention  of  the  respondent 
that  he  should  not  be  punished  for  publishing  the  truth  by 
saying : 

"State  vs.  Shepherd,  147  Mo.,  244,  has  been  cited  as  contra  our 
conclusion.  The  question  is  not  presented  by  the  answer  of  the 
respondent  in  that  case,  nor  is  its  sufficiency  as  a  defense  considered 
or  passed  upon  by  the  court.  No  case  has  been  found  which  sus- 
tains, or  tends  to  sustain,  the  contention  of  counsel." 

It  is  true  that  the  answer  of  the  respondent  did  not 
justify  by  alleging  the  truth  of  the  charges,  but  I  can  place 
no  other  construction  upon  the  language  of  the  court  than 
that,  in  the  judgment  of  that  court,  proof  of  the  truth  of 
the  alleged  contemptuous  articles  is  a  perfect  defense. 


210  ROBERT    WILBUR    STEELE 

As  my  brother  Gunter  and  I  have  placed  constructions 

upon   the   Missouri  case  that   are   diametrically  opposed  to 

each  other,  I  shall  quote  from  the  opinion  in  that  case  the 

language  upon  which  I  base  my  conclusion  that  the  court 

held  that  the  truth  of  the  charges  made  is  a  justification  in 

a  proceeding  for  contempt.     The  publisher  of  a  newspaper 

had  charged,  in  effect,  that  the  judges  of  the  Supreme  Court 

had  been  bribed  by  the  Missouri  Pacific  Railroad  Company 

to   render   a   certain   judgment   in   its   favor.      The   article 

stated,  among  other  things,  that 

"As  the  capsheaf  of  all  this  corruption  in  high  places,  the 
Supreme  Court  has,  at  the  whipcrack  of  the  Missouri  Pacific  Rail- 
road, sold  its  soul  to  the  corporations." 

Further,  that 

"The  victory  of  the  railroad  has  been  complete,  and  the  corrup- 
tion of  the  Supreme  Court  has  been  thorough.  It  has  reversed  and 
stultified  itself  in  this  case  until  no  sane  man  can  ever  have  any 
other  opinion  but  that  the  judges  who  concurred  in  the  opinion 
dismissing  the  Oglesby  case  have  been  bought  in  the  interest  of  the 
railroad." 

The  court  then  proceeds  : 

"If  these  charges  are  true,  the  persons  who  are  thus  charged 
should  be  prosecuted  and  removed  from  office.  On  the  other  hand, 
anyone  who  makes  such  charges  should  be  prepared  to  make  some 
sort  of  a  decent  showing  of  their  truth.  Instead  of  standing  ready 
to  prove  the  truth  of  the  charges,  the  defendant,  when  called  into 
court,  neither  asserts  the  truth  of  the  charges,  nor  does  he  accept 
the  challenge  of  the  attorney  general  to  introduce  any  evidence 
whatever  of  their  truth.  *  *  *  in  other  words,  the  defendant 
has  grossly,  indecently  and  cruelly  vilified  and  scandalized  every 
department  of  the  government  under  which  he  lives,  and  which 
affords  him  protection  for  his  life,  liberty  and  property,  and,  when 
challenged  to  make  his  words  good,  he  consummates  his  offending 
by  failing  absolutely  to  produce  one  word  of  testimony  to  show  that 
he  told  the  truth,  and,  instead  of  making  the  'amende  honorable'  by 
withdrawing  the  charges  and  apologizing  like  a  man,  he  seeks  to 
escape  punishment  by  challenging  the  jurisdiction  of  this  court." 

At  another  place  in  the  opinion  the  court  says : 

"The  offense  of  scandalum  magnatum  has  not  existed  in  this 
country  since  the  revolution,  but  anyone,  of  whatever  rank  or  sta- 
tion  in   life,   stands   upon   the   same   footing  before  the   law   and   is 


THE    OPINION    IN    THE    PATTERSON    CASE  211 

entitled  to  the  same  protection  for  his  life,  his  liberty,  his  property 
and  his  reputation.  In  the  eyes  of  our  constitution  and  laws,  every 
man  is  a  sovereign  and  ruler,  and  a  freeman,  and  has  equal  rights 
with  every  other  man.  *  *  *  Every  man  may  lawfully  do 
what  he  will,  so  long  as  it  is  not  mala  in  se  or  mala  prohibita,  or 
does  not  infringe  upon  the  equally  sacred  rights  of  others.  Every 
man  may  speak  and  write  what  he  will,  so  long  as  he  tells  the 
truth,  but  no  man  has  any  more  right  today  to  bear  false  witness 
against  his  neighbor  than  he  had  in  the  days  of  Moses." 

At  another  place  the  court  says : 

"But  the   press  has  no  greater  liberty  in  this  regard  than   any 

citizen.     Newspapers   and  citizens  have  the   same  right  to  tell   the 

truth  about  anybody  or  any  institution.  Neither  has  the  right  to 
scandalize  anyone  or  any  institution." 

And  again : 

"Good  people  obey  the  laws,  slander  no  one  and  speak  the 
truth.  Others  must  do  so  or  be  punished.  Upon  no  other  basis  could 
good  government  rest  or  the  rights  of  the  people  be  protected. 
*  *  *  This  is  the  true  rule.  The  liberty  of  the  press  means 
that  anyone  can  publish  anything  he  pleases,  but  he  is  liable  for 
the  abuse  of  this  liberty.  If  he  does  this  by  scandalizing  the  courts 
of  his  country  he  is  liable  to  be  punished  for  contempt.  If  he  slan- 
der his  fellow  men  he  is  liable  to  a  criminal  prosecution  for  libel, 
and  to  respond  civilly  in  damages  for  the  injury  he  does  to  the 
individual.  In  other  words,  the  abuse  of  the  privilege  consists 
principally  in  not  telling  the  truth." 

And,  quoting  from  a  New  York  case,  it  says : 

"It  has  been  urged  upon  you  that  the  conductors  of  the  public 
press  are  entitled  to  peculiar  indulgences  and  have  special  rights 
and  privileges.  The  law  recognizes  no  such  peculiar  rights,  privi- 
leges or  claim  to  indulgence.  They  have  no  rights  but  such  as  are 
given  to  all.  They  have  just  the  same  right  that  the  rest  of  the 
community  have,  and  no  more.  They  have  the  right  to  publish  the 
truth,  but  no  right  to  publish  falsehood  to  the  injury  of  others  with 
impunity.  It  is  the  liberty  of  the  press  that  is  guaranteed,  not  the 
licentiousness.  It  is  the  right  to  speak  the  truth,  not  the  right  to 
bear  false  witness  against  your  neighbor." 

And,  quoting  the  following  from  an  English  case : 

"Some  people  are  very  credulous,  especially  in  politics,  and 
can  readily  believe  any  evil  of  their  opponents.  There  must,  there- 
fore, be  some  foundation  in  fact  for  the  charges  made.  *  *  * 
The  courts  of  other  states  have  held  that  it  is  libelous  to  charge  an 
officer  with  having  taken  a  bribe,  or  with  corruption,  or  with  want 
of  integrity.  In  such  cases  the  publisher  must  stand  ready  to  prove 
the  truth  of  his  charges  or  he  will  not  go  unwhipped  of  justice." 


212  ROBERT    WILBUR    STEELE 

Here  the  court  cites  a  great  number  of  cases  in  support 

of  its  position.     And,  in  speaking  of  the  case  the  decision 

of  which  called  forth  the   newspaper   comment,   the   court 

said: 

"No  one  believed  or  dared  to  charge  another  with  dishonesty 
of  opinion  or  action,  and  there  was  no  foundation  in  fact  and  in 
truth  for  any  such  charges.  There  was,  therefore,  no  legal  justifica- 
tion or  excuse  for  the  article  that  was  published  by  the  defendant. 
He  did  not  dare  attempt  to  prove  or  claim  that  it  was  true,  but 
stood  mute  as  to  that,  and  sought  to  escape  punishment  on  other 
grounds  which  were  untenable.  He  was  therefore  guilty  of  malice. 
He  abused  the  liberty  of  the  press  and  made  himself  liable  therefor." 

And,  finally,  in  closing,  the  court  says : 

"What  is  herein  said  in  no  manner  whatever  conflicts  with 
what  was  said  in  Marx  &  Haas  Jeans  Clothing  Company  vs.  Wat- 
son, 168  Mo.,  133.  That  was  a  suit  in  equity  to  enjoin  a  boycott,  and 
it  was  held  that  injunction  would  not  lie  to  restrain  the  utterance 
of  a  libel  or  slander,  or  to  restrain  free  speech.  It  was  held  there, 
as  it  is  here,  that  everyone  may  speak,  write  or  publish  whatever  he 
will,  but  is  responsible  for  the  abuse  of  the  privilege.  That  case, 
as  well  as  this,  holds  that  the  courts  cannot  prevent  a  man  telling 
an  untruth  about  another,  but  their  power  is  limited  to  punishing 
him  if  he  does  so." 

I  must  confess  my  utter  inability  to  understand  ordi- 
nary English  words,  if  the  court  did  not  declare  that  the 
defendant  presented  no  legal  justification  or  excuse  for  the 
articles  published,  because  he  failed  to  establish  the  truth. 

The  court  says : 

"But  no  case  has  been  presented  which  sustains,  or  tends  to 
sustain,  respondent's  contention  that  the  truth  is  a  justification." 

I  have  presented  several,  and  none  have  been  cited  to 
the  contrary.  And  it  seems  to  me  that  it  is  contrary  to  the 
American  spirit  to  punish  a  man  for  telling  the  truth.  That 
no  case  is  presented  in  which  the  answer  of  the  respondent 
alleges  the  truth  as  a  justification,  and  the  court  has  dis- 
charged him  because  he  proved  the  truth,  I  concede.  In  the 
cases  cited  where  charges  were  made  against  the  appellate 
tribunal,  the  court  carefully  calls  attention  to  the  fact  that 
the  charges  are  false  and  makes  explanation  of  its  conduct. 


THE    OPINION    IN    THE    PATTERSON    CASE  2I3 

The  law  up  to  this  tune  has  been  such  that  no  judge  would, 
probably,  cite  one  for  publishing  truthful  charges  concern- 
ing him,  unless  he  was  satisfied  that  the  respondent  could 
not  or  would  not  undertake  to  prove  his  charges.  This  may 
account  for  there  being  no  case  just  like  the  one  under 
consideration. 

I  have  always  understood  that  the  truth  was  a  perfect 
defense  to  actions  of  this  kind ;  that  it  was  not  only  a  right 
every  person  had  to  disclose  the  fact,  but  that  it  was  a  duty 
he  owed  to  his  country  to  proclaim  abuses  when  found  to 
exist  in  public  office — "For  truth  can  be  outraged  by  silence 
quite  as  cruelly  as  by  speech." 

An  exception  is  said  to  exist  in  favor  of  judges,  but  I 
know  of  no  good  reason  why  the  judicial  department  of  the 
government  should  be  screened  from  the  searchlight  of 
truth,  while  the  officers  of  the  other  departments  remain  in 
its  glare. 

The  court  says  the  "weight  of  authority"  sustains  the 
law  as  so  announced  by  the  court ;  and  cites  State  vs.  Mer- 
rill, State  vs.  Frew,  Myers  vs.  State,  Sturoc's  case.  State  vs. 
Shepherd,  and  7  American  and  English  Encyclopedia  of 
Law  and  cases.  This  statement  I  must  flatly  dispute. 
Judge  Thomas,  in  his  recent  work  on  Constructive  Con- 
tempts, says : 

"Out  of  forty-five  states  the  courts  of  only  two — Arkansas  and 
West  Virginia — have  set  aside  statutes  in  order  to  obtain  jurisdic- 
tion to  punish  as  for  a  contempt  a  libelous  newspaper  publication, 
*  *  *  and  two  other  courts — Georgia  and  Virginia — have  held 
that  the  court's  inherent  power  to  punish  contempts  cannot  be 
limited  by  legislative  power;  but  these  cases  did  not  involve  news- 
paper publications."  *  *  *  "The  courts  in  these  four  states 
have  gone  farther  than  the  courts  in  any  other  state,  and  they  stand 
alone  in  holding  contempt  statutes  containing  negative  or  restrictive 
words  unconstitutional  in  order  to  exercise  this  extraordinary  power. 
In  these  cases  the  question  of  the  unconstitutionality  of  the  statute 
was  squarely  presented  by  the  record,  and  decided  by  the  courts. 

"Another  fact  must  not  be  overlooked  in  the  examination  of  this 
question,  and  that  is,  no  court  in  this  country,  or  any  country  for 
that  matter,  ever  set  aside  a  statute  in  order  to  acquire  jurisdiction 


214  ROBERT    WILBUR    STEELE 

in   a   contempt  case   until   the   Supreme   Court  of   Arkansas,   in   the 
Morrill  case,  in  1855.  did  that." 

So  that,  as  this  insignificant  number  of  cases  cannot 
be  regarded  as  sustaining  the  weight  of  authority,  it  must 
be  that  state  pride  was  a  very  important  element  in  inducing 
the  statement  from  my  brother  Gunter. 

I  do  not  contend  that  one  who  in  open  court  charges  a 
judge  with  corruption  may  justify  his  act  by  proof  that  his 
charge  is  true,  but  I  do  contend  that  when  the  alleged  con- 
tempt consists  of  the  publication  in  a  newspaper  of  defama- 
tory accusations  such  publication  is  not  contempt,  but  libel, 
and  that  the  constitution  intervenes  to  prevent  that  offense 
from  being  tried  by  judges  who  are  smarting  under  a  sense 
of  injury;  and  that  when  a  court  takes  cognizance  of  a 
newspaper  libel,  either  directly  or  remotely  connected  with 
a  pending  case,  upon  the  ground  that  the  publication  was 
calculated  and  intended  to  influence  its  action,  it  ought, 
nevertheless,  to  prosecute  and  convict  only  for  the  contempt, 
and  not  for  the  libel ;  and  that,  so  far  as  the  libel  is  con- 
cerned, the  truth  is  always  a  justification,  no  matter  what 
the  court  is  pleased  to  call  the  offense. 

I  do  not  approve  of  the  decision  in  State  vs.  Shepherd, 
from  which  I  have  quoted,  in  so  far  as  it  declares  the  court's 
jurisdiction;  but  I  regard  it  as  very  much  nearer  correct 
than  the  decision  in  this  case.  For  in  that  case  the  defend- 
ant was  punished  for  publishing  a  false  charge  against  the 
court,  while  in  this  case  it  is  held  that  a  person  is  guilty  of 
contempt  even  though  the  charges  made  be  true. 

The  theory  upon  which  is  based  the  doctrine  that  the 

truth  is  not  a  defense  is  stated  by  counsel  for  the  people  in 

the  case  People  vs.  Stewart,  supra,  when  he  said,  referring 

to  the  provision  of  the  constitution  which  provides  that  the 

truth  may  be  given  in  evidence : 

"This    provision    of    the    constitution    only    relates    to    criminal 
prosecutions,  and  the  truth  may  be  given  in  evidence  in  such  prose- 


THE    OPINION    IN    THE    PATTERSON    CASE  215 

cutions;  but  in  a  proceeding  for  contempt  this  cannot  be  done,  and 
ought  not  to  be,  because  it  is  not  considered  as  affecting  the  indi- 
vidual, but  the  court.  Whether  the  publication  was  true  or  false  is 
immaterial,  because  the  court,  as  a  court,  must  be  protected,  whether 
right  or  wrong." 

But  this  doctrine,  though  captivating,  was  repudiated 
by  the  court  and  has  found  lodgment  in  none  of  the  reports 
of  this  country,  and  I  trust  its  lodgment  here  is  but  tempo- 
rary. Even  in  Arkansas,  where  we  find  the  first  decision 
declaring  the  inherent  power  of  the  court  to  punish  for  this 
character  of  contempts,  and  holding  the  legislative  enact- 
ment void  which  regulated  the  punishment  and  procedure, 
this  doctrine  does  not  germinate,  for  this  language  appears 
in  Neal  vs.  State,  9  Ark.,  259 : 

"But  while  the  aegis  of  the  law  is  so  thrown  over  the  judge,  it 
finds  no  pleasure  in  him  when  he  proves  recreant  to  the  high  trust 
reposed  in  him,  for,  in  the  language  of  one  of  its  oracles  (Sergeant 
Hawkins),  'If  a  judge  will  so  far  forget  the  honor  and  dignity  of 
his  post  as  to  turn  solicitor  in  a  cause  which  he  is  to  judge,  and 
privately  and  extra  judicially  tamper  with  witnesses,  or  labor 
jurors,  he  hath  no  reason  to  complain  if  he  be  dealt  with  according 
to  the  capacity  to  which  he  so  basely  degrades  himself." 

In  repudiating  the  doctrine  the  Illinois  court  said : 

"If  a  judge  be  libeled  by  the  public  press  he  and  his  assailant 
should  be  placed  on  equal  grounds,  and  their  common  arbiter  should 
be  a  jury  of  the  country." 

And,  again,  in  People  vs.  Storey,  supra,  the  court  said : 

"The  theory  of  government  (British)  requiring  royalty  to  be 
invested  with  an  imaginary  perfection  which  forbids  question  or 
discussion  is  diametrically  opposed  to  our  theory  of  popular  govern- 
ment, in  which  the  utmost  latitude  and  freedom  of  discussion  of 
business  affecting  the  public  and  the  conduct  of  those  who  fill  posi- 
tions of  public  trust,  that  is  consistent  with  truth  and  decency,  is 
not  only  allowable  but  essential  to  the  public  welfare." 

This  doctrine  does  not  thrive  in  Pennsylvania,  for  we 

find  the  Supreme  Court  of  that  state  asserting,  in  ex  parte 

Steinman,  supra: 

"We  need  not  say  that  the  case  is  altered  and  that  it  is  now 
the  right  and  duty  of  a  lawyer  to  bring  to  the  notice  of  the  people 


2l6  ROBERT    WILBUR    STEELE 

who  elect  the  judge  every  instance  of  what  he  believes  to  be  corrup- 
tion or  partisanship." 

Judge  Thompson  was  not  seduced  by  the  pleasing  doc- 
trine, for  he  says : 

"It  is,  moreover,  to  be  observed  that  in  states  where,  as  in  Colo- 
rado, the  people  elect  their  judges,  it  is  in  accordance  with  the 
spirit  of  our  institutions  that  the  newspaper  press  should  possess  the 
same  right  to  criticise  the  conduct  of  the  judges  which  they  possess 
to  criticise  the  conduct  of  any  other  official." 

Nor  was  the  editor  of  the  Central  Law  Journal  led 
astray.    He  observes : 

"The  judiciary  are  but  men,  and  therefore  as  open  to  corrupting 
influences  as  those  in  control  of  any  other  of  the  co-ordinate  branches 
of  the  government,  and,  like  them,  need  the  deterring  influence  of 
free  public  criticism." 

And    in    Wisconsin — Wisconsin    upon    which    we    so 

implicitly   rely   for   our   assertion   of  the   high  prerogative 

power,  and  whose  judgment  we  so  often  misconstrue — does 

not  relish  the  doctrine,  for  its  judges  say,  in  re  Ashbaugh, 

supra : 

"Under  such  a  rule  the  merits  of  a  sitting  judge  may  be 
rehearsed,  but  as  to  his  demerits  there  must  be  profound  silence. 
In  our  judgment  no  such  divinity  'doth  hedge  about  a  judge,'  cer- 
tainly not  when  he  is  a  candidate  for  public  office." 

Justice  Brewer,  when  judge  of  the  Supreme  Court  of 

Kansas,  denounced  the  doctrine,  for  he  said,  in  re  Pryor, 

supra: 

"For  no  judge  and  no  court,  high  or  low,  is  beyond  the  reach 
of  public  and  individual  criticism." 

With  Wharton  the  doctrine  does  not  find  favor,  for  he 

affirms : 

"We  can  conceive  not  only  of  a  weak  judge  who  dreads  intimi- 
dation, but  of  a  corrupt  judge  who  dreads  exposure.  To  give  a 
bad  and  bold  man  of  this  class  an  engine  so  potent  as  this  is  to  do 
away  with  one  of  the  few  means  by  which  he  can  be  exposed." 

The  court  made  a  mistake  in  instituting  the  proceed- 
ing ;  a  mistake  in  holding  that  an  affidavit  is  not  essential 
to  its  jurisdiction;  a  mistake  in  holding  that  the  acts  of  the 


THE    OPINION    IN    THE    PATTERSON    CASE  217 

respondent  constituted  contempt.  But  infinitely  greater 
than  these  was  the  mistake  it  made  in  holding  the  truth  to 
be  immaterial.  For,  aside  from  the  fact  that  it  denied  to 
the  respondent  important  constitutional  rights,  in  the  very 
nature  of  things,  those  who  before  believed  the  charges  to 
be  true  are  now  confirmed  in  their  belief,  and  those  who  did 
not  believe  them  now  have  their  confidence  in  the  court 
shaken  solely  because  of  the  action  of  the  court  in  refusing 
the  respondent  a  hearing  and  denying  him  the  right  to  offer 
proof  in  support  of  the  charges,  and  in  holding  that  it  is 
entirely  immaterial  whether  the  matter  published  is  true  or 
false. 


CHAPTER  XI 

THE   RIGHT   OF   FREE   ELECTIONS   AND   THE   DECISION 
IN  THE  TOOL  CASE 

"That  all  elections  shall  be  free  and  open;  and  no  power,  civil 
or  military,  shall  at  any  time  interfere  to  prevent  the  free  exercise 
of  the  right  of  suffrage." — Colorado  Constitution,  Bill  of  Rights, 
section  5. 

The  growth  of  the  system  of  machine  politics  in  Colo- 
rado was  felt  to  be  an  evil  and  a  danger  by  honest  men  of 
all  parties.  It  had  brought  the  Republican  party,  once  the 
regular  choice  of  the  majority  of  the  people  of  the  state, 
into  a  position  of  inferiority  where  it  was  discredited  as  well 
as  disapproved  by  a  majority  of  the  Independent  voters. 
It  had  fixed  its  control  upon  the  local  Democratic  organiza- 
tion in  the  city  and  county  of  Denver,  holding  its  power 
and  winning  its  partisan  victories  by  the  most  flagrant 
frauds.  The  relations  between  the  machine  politicians  and 
the  political  corporations  were  intimate  and  two-fold,  for, 
while  the  political  activity  of  the  corporations  was  largely 
the  result  of  the  evils  of  machine  politics,  some  of  the  worst 
evils  of  machine  politics  were  the  direct  consequence  of  the 
interference  of  corporations  in  matters  that  ought  to  have 
remained  entirely  outside  the  range  of  their  activity. 

These  evils,  developed  and  ever  increasing  through 
many  years,  reached  their  culmination  in  the  contest  for  the 
governorship  in  the  election  of  1904  and  in  the  contest  case 
in  the  legislature  in  the  early  months  of  1905.  Those  who 
see  in  the  contest  between  Alva  Adams  and  James  H. 
Peabody  merely  a  question  of  partisan  success,  a  choice 
between  the  Democratic  candidate  and  his  Republican  rival, 
have  entirely  failed  to  grasp  the  significance  of  historical 
events.     Neither  can  it  be  said  that  right  and  justice  lay 


THE    RIGHT    OF    FREE    ELECTIONS  IIQ 

exclusively  on  either  side.  Peabody  came  before  the  people 
with  the  handicap  of  the  usurpation  of  military  power  that 
Justice  Steele  had  so  cogently  exposed  in  the  decision  in  the 
Moyer  case.  Adams'  title  was  clouded  by  the  undeniable 
frauds  of  the  Tammany  organization  of  Denver.  Neither 
side  could  claim  exemption  from  corporation  support.  One 
large  and  powerful  group  of  financial  interests  was  aiding 
the  Republican  with  money  and  influence,  and  another, 
scarcely  less  resourceful,  was  forwarding  the  cause  of  the 
Democrat. 

In  the  light  of  all  the  testimony  and  with  the  consensus 
of  the  most  impartial  observers,  Adams  received  an 
undoubted  majority  of  the  fairly  cast  votes  of  the  state. 
That  many  votes  were  fraudulently  and  illegally  cast  for 
him  admits  of  no  denial.  That  clever  lawyers  were  able  to 
present  specious  arguments  to  warrant  the  seating  and 
retention  of  Peabody  is  a  part  of  the  record  of  the  case. 
The  final  failure  of  the  legislature  to  establish  Peabody's 
claim,  the  subterfuge  by  which  the  Republican  lieutenant 
governor  became  the  chief  executive  through  Peabody's 
resignation,  the  comparison  of  percentages  of  Republican 
loss  and  Democratic  gain  in  counties  where  there  was  no 
suspicion  of  fraud  or  coercion,  and  the  general  trend  of 
public  sentiment  before,  during  and  after  the  contest,  all 
point  to  the  same  conclusion — that  Adams  was  the  choice 
of  a  majority  of  the  legal  voters  in  that  election. 

The  electoral  and  legislative  side  of  that  contest  does 
not,  however,  concern  the  present  volume.  Robert  Steele 
was  too  patriotic,  too  much  interested  in  public  questions 
and  too  clear-sighted  as  to  the  basic  principles  involved  in 
such  matters  not  to  feel  a  keen  interest  in  this  important 
contest.  But  as  a  justice  of  the  Supreme  Court  of  the  state 
he  held  a  position  too  high  for  partisanship,  and  his  sense 
of  dignity  and  propriety  was  too  clear  to  permit  any  par- 


220  ROBERT    WILBUR    STEELE 

ticipation  in  a  public  discussion  of  a  contest  that  might 
come  before  him  for  judgment. 

With  an  attempt  that  was  made  to  bring  the  Supreme 
Court  into  the  domain  of  partisan  politics,  and  to  use  its 
authority  and  influence  to  forward  the  purposes  of  machine 
control  of  elections,  he  had  an  immediate  and  direct  con- 
cern. 

In  what  is  known  as  the  Tool  case,  the  Supreme  Court 
was  asked  to  grant  a  writ  of  injunction  against  precinct 
judges  of  election,  the  fire  and  police  board,  the  sheriff,  the 
chief  of  police,  the  chief  of  the  fire  department,  the  mem- 
bers of  the  election  commission,  the  chairman  of  the  Demo- 
cratic central  committee  of  the  city  and  county  of  Denver 
and  the  chairman  of  the  Democratic  state  central  committee, 
who  were  charged  with  conspiracy  to  defeat  the  will  of  the 
people  at  the  polls  by  fraudulent  registration  already 
accomplished,  and  by  other  fraudulent  practices  contem- 
plated for  the  period  before  and  during  the  election.  The 
Supreme  Court  was  further  asked  to  appoint  two  watchers 
for  each  designated  precinct  for  the  purpose  of  observing 
how  the  election  in  those  precincts  was  conducted. 

In  their  reply  the  respondents  challenged  the  jurisdic- 
tion of  the  court  in  these  matters,  and  claimed  that  the 
relief  sought  was  in  conflict  with  section  5,  article  2  of  the 
constitution,  which  provides  that  "All  elections  shall  be 
free  and  open,  and  no  power,  civil  or  military,  shall  at  any 
time  interfere  to  prevent  the  free  exercise  of  the  r;ght  of 
suffrage."  They  further  answered  denying  the  conspiracy 
charged  or  purpose  upon  their  part  to  commit  any  of  the 
threatened  illegal  acts  mentioned  in  the  bill. 

The  decision  of  the  court  upon  the  main  point,  as 
summarized  (35  Colo.,  page  226),  was:  "Individuals  can- 
not invoke  the  power  of  a  court  of  equity  to  enjoin  the 
commission  of  illegal  acts  on  the  ground  that  they  injuri- 


THE    RIGHT    OF    FREE    ELECTIONS  221 

ously  affect  the  public  interests,  but  the  state,  in  its  sover- 
eign capacity  as  parens  patriae,  has  the  right,  and  it  is  its 
duty,  to  protect  its  citizens  when  they  are  incompetent  to 
act  for  themselves,  and  it  may  maintain  an  action  to  prevent 
the  consummation  of  threatened  combinations  and  acts 
which  will  deprive  the  people  of  their  liberties,  rights  and 
privileges  as  citizens,  although  such  combinations  and  acts 
would  constitute  crimes." 

From  the  decision  of  the  court  Justice  Steele  dissented, 
although  he  filed  no  written  opinion. 

The  injunction  having  been  issued  by  the  Supreme 
Court,  the  election  was  held,  after  which  proceedings  in 
contempt  were  instituted  against  certain  persons  named  in 
the  writ.  At  their  trial  it  was  developed  that  they  had 
disobeyed  the  writ  of  the  court  by  the  perpetration  of  gross 
frauds,  for  which  they  were  convicted  of  contempt.  After 
these  proceedings  the  attorney  general,  in  the  name  of  the 
people,  moved  for  an  order  directing  the  election  commis- 
sion to  exclude  the  returns  from  these  precincts  in  making 
up  the  final  abstract  of  votes.  The  decision  of  the  court 
was  that  the  court  had  the  authority  to  make  such  an  order 
in  cases  where  frauds  were  committed  to  such  an  extent  that 
the  returns  are  absolutely  false  and  that  the  truth  cannot 
be  deduced  from  them.  The  order  was  accordingly  issued. 
Without  filing  a  written  opinion,  Justice  Steele  dissented 
from  the  decision  of  the  majority  of  the  court. 

In  the  counting  of  the  votes  of  this  election,  the  ques- 
tion arose  whether  the  election  commission,  acting  as  a 
board  of  canvassers,  may,  in  making  up  the  returns,  con- 
sider the  tally  list,  or  is  the  board  limited  to  the  certificate 
of  the  precinct  election  officials?  In  other  words,  in  case 
of  a  discrepancy  between  the  tally  list  and  such  certificate, 
which  shall  control  ?  The  decision  of  the  court  was  that 
only   the    certificate    can    be    considered    and    it   cannot   be 


222  ROBERT    WILBUR    STEELE 

changed  by  the  canvassers  by  reference  to  the  tally  list. 
From  this  decision  Justice  Steele  dissented  orally,  saying: 
"/  dissent  from  the  judgment,  because,  in  my  opinion,  it  is 
unwarranted,  without  precedent,  and  directly  contrary  to 
the  law." 

It  should  be  remembered  in  consideration  of  these  mat- 
ters that  they  were  a  part  of  the  Peabody-Adams  contest, 
which  was  itself  a  part  of  the  larger  struggle  for  the  control 
of  the  state,  not  merely  between  two  political  parties,  but 
also  between  two  rival  systems  of  politics  and  of  govern- 
ment. The  election  for  which  the  Supreme  Court  was  asked 
to  issue  the  injunction  was  that  at  which  Peabody  and 
Adams  headed  the  Republican  and  the  Democratic  state 
tickets.  The  frauds  alleged  as  a  basis  for  the  charge  of 
conspiracy,  and  later  established  as  a  fact  upon  which  con- 
tempt proceedings  were  based,  were  a  part  of  the  campaign 
programme  of  the  Tammany  machine.  The  throwing  out 
of  certain  precincts  by  the  board  of  canvassers  under  the 
order  of  the  court,  and  the  ruling  of  the  court  concerning 
the  tally  lists  and  the  precinct  certificates,  gave  Peabody  his 
majority  upon  the  face  of  the  returns  and  made  him  defend- 
ant in  possession  instead  of  claimant  in  the  ensuing  contest 
in  the  legislature. 

The  majority  of  the  Supreme  Court  judges  appre- 
hended the  fact  that  they  were  close  to  the  border  of  politi- 
cal and  partisan  activity,  for  they  said  in  their  original 
opinion : 

"The  state  has  no  interest  in  the  success  or  defeat  of  any  politi- 
cal organization.  It  is  immaterial  that  it  appears  from  the  aver- 
ments of  the  bill  that  one  political  organization  is  in  control  of  the 
election  machinery  provided  by  law  and  will  employ  illegal  means 
to  the  detriment  of  the  other;  nor  is  it  material  that  private  relators 
are  named  who  are  candidates  of  the  Republican  party,  and  that 
respondents  are  engaged  in  a  conspiracy  which  will  result  in  fraud- 
ulently depriving  the  Republican  candidates  of  votes,  and  give  to 
the  candidates  of  the  Democratic  ticket  fraudulent  and  fictitious 
votes.     These  are  but  incidents  by  which  it  is  made  to  appear  that 


THE    RIGHT    OF    FREE    ELECTIONS  223 

the  elections  will  be  dishonestl}'  and  fraudulently  conducted,  so 
that  the  ballots  cast  by  the  legal  voters  will  not  be  counted  as  they 
should  be,  or  have  the  effect  they  should  have,  because  of  frauds. 
*  *  *  The  prevention  of  frauds  which  it  is  charged  they  intend 
to  commit  may  have  a  political  effect,  in  the  sense  that  the  success 
or  defeat  of  a  political  organization  may  be  affected,  but  that  does 
not  make  the  questions  presented  political  instead  of  judicial.  The 
action  is  not  to  have  this  court  exercise  functions  which  belong  to 
any  other  department  of  government,  but  merely  to  construe  the  law 
relative  to  the  duty  of  the  respondents  and  the  power  of  the  state 
to  execute  its  laws,  and  to  command  obedience  to  them.  The  ques- 
tions presented  by  the  bill  are,  therefore,  purely  judicial." 

With  the  general  proposition  that  the  people  of  the 
state,  without  regard  to  party,  have  a  right  to  all  the  pro- 
tection that  can  be  given  by  the  courts  for  their  funda- 
mental political  rights,  there  can  be  no  ground  for  dissent. 
But,  in  view  of  the  circumstances  and  precedent  conditions, 
it  is  difficult  to  avoid  the  conclusion  that  an  effort  was  then 
made,  not  wholly  consciously  by  all  its  participants,  to  bend 
the  Supreme  Court  of  the  state  to  the  uses  of  machine  poli- 
tics, just  as  the  effort  had  been  made  to  use  the  executive 
department  for  a  similar  purpose;  just  as  the  effort  was 
afterward  made  to  use  the  legislature  to  overthrow  the  plain 
and  manifest  decision  of  the  legal  voters  of  the  state  at  the 
polls. 

In  an  earlier  decision,  in  the  case  of  People  ex   rel. 

L'Abbe   vs.   The   District  Court,   at  the  April   term,    1899 

(26  Colorado,  386),  the  Supreme  Court  had  declared  that 

the  courts  of  Colorado  were  without  jurisdiction  to  enjoin 

the  commission  of  threatened  crime : 

"However  desirable  or  convenient  it  might  appear  to  put  a 
stop  to  criminal  practices  by  invoking  the  extraordinary  writ  of 
injunction,  we  cannot  permit  the  constitutional  and  statutory  rights 
of  individuals  to  be  thus  violated.  We  cannot  allow  the  writ  of 
injunction  to  usurp  and  take  the  place  of  the  orderly  processes  of 
the  criminal  law  which  the  constitution  and  the  legislature  have 
provided.  Such  a  course  as  the  District  judge  adopted,  if  approved 
by  us,  would  make  of  a  single  judge  both  court  and  jury  in  the  trial 
of  a  criminal  action  whose  sole  object  is  to  punish  one  for  commit- 
ting a  crime;  and  if  a  defendant  refused  to  obey  his  injunctive 
order,    there    could    be    no    redress    from    a    sentence    for   contempt 


224  ROBERT    WILBUR    STEELE 

imposed  for  its  violation.  Such  an  unlimited  power  is  too  great  to 
be  conferred;  at  least,  it  has  not  been  intrusted  to  any  judge  or 
court  by  the  constitution  or  laws  of  the  state.  *  *  *  As  for  this 
court,  its  highest  obligation  is  to  observe  and  enforce  the  constitution 
whose  creature  it  is,  and  it  is  contrary  to  the  conception  of  duty 
entertained  by  its  members  to  permit  precedents  to  be  made  in  defi- 
ance of  the  constitution." 

The  plain  proposition  presented  in  the  Tool  case  was 
that  the  Supreme  Court  of  the  state  should  in  a  measure 
assume  control  of  the  election.  It  was  asked  to  issue  to  the 
election  officials  a  mandate  supplementary  to  that  laid  upon 
them  in  the  statute  enacted  by  the  constitutional  lawmaking 
authority.  It  was  proposed  to  send  to  the  polling  places 
representatives  of  the  supreme  judicial  power  to  act  in 
a  quasi-executive  capacity  toward  the  enforcement  of  the 
supplementary  legislation  prescribed  by  the  court.  It  was 
intended  to  make  this  exercise  of  authority  effective  through 
the  power  of  the  court  acting  in  arbitrary  contempt  proceed- 
ings under  which  the  ordinary  safeguards  of  criminal  pro- 
cedure were  wholly  lacking.  Had  there  been  no  apparent 
excuse  for  such  assumption  of  extraordinary  authority,  it 
could  not  have  been  approved  by  any  intelligent  citizen. 
There  was  excuse.  The  Democratic  frauds  had  been  bold 
and  glaring.  The  rights,  not  merely  of  another  political 
party  but  of  the  honest  citizens  of  the  state,  were  endan- 
gered. And  one  party  within  the  state  held  to  the  theory 
that  the  constitutional  provisions  might  properly  be  strained, 
or  perhaps  broken,  in  order  to  serve  the  apparent  passing 
need  of  the  moment,  while  another  party  maintained  the 
belief  that  the  constitution  should  be  kept  inviolate,  lest  in 
seeking  a  remedy  for  a  present  evil  the  way  might  be  opened 
for  the  entrance  of  far  greater  dangers.  If  in  one  election 
the  court  might  send  its  watchers  to  secure  evidence  for 
subsequent  proceedings  under  its  authority  to  punish  for 
contempt  in  violations  of  its  mandate,  at  another  time 
another  set  of  judges  with  greater  partisan  bias  and  with 


THE    RIGHT    OF    FREE    ELECTIONS  22^ 

less  regard  for  elemental  justice  might  obstruct  the  free 
decision  of  the  people  at  the  polls.  If  the  Supreme  Court 
at  one  time  should  direct  the  election  officials  to  prepare 
their  count  in  a  certain  manner,  thereby  giving  color  of 
title  to  the  governorship  to  one  who  was  afterwards  demon- 
strated to  be  the  minority  candidate,  a  precedent  would  be 
established  that  might  at  some  future  time  prove  a  stepping 
stone  to  a  grosser  usurpation  of  power  by  reckless  and  auda- 
cious partisans. 

In  so  far  as  the  power  of  the  court  was  sincerely  and 
legitimately  used  to  prevent  or  to  punish  crime  and  fraud, 
its  acts  were  commendable.  In  so  far  as  they  served  the 
purposes  of  partisanship  and  prepared  the  way  for  the 
subsequent  effort  in  the  legislature  to  maintain  as  governor 
one  who  received  less  than  the  number  of  honest  votes 
honestly  cast  for  his  opponent,  those  acts  were  regrettable 
and  dangerous.  Some  honest  citizens  approved  them  as 
wise  and  necessary,  but  a  much  larger  number  saw  in  them 
additional  evidence  of  the  struggle  of  the  machine  system 
of  politics  to  strengthen  and  to  maintain  its  hold  upon  the 
state  government  in  opposition  to  the  rising  power  of  public 
sentiment  for  cleaner  politics  and  better  government. 

It  is  to  be  regretted  that  Justice  Steele  did  not  leave 
upon  the  record  in  the  Tool  case  such  a  comprehensive 
statement  of  his  reasons  and  his  authorities  as  was  given  to 
the  public  in  the  Moyer  case  and  the  Patterson  case.  But 
he  left  no  doubt  of  his  position  in  any  of  these  matters,  and 
it  is  certain  that  in  his  dissents  he  was  influenced  by  no 
partisan  prejudices,  and  that  he  saw  clearly  the  constitu- 
tional and  fundamental  principles  of  free  government  that 
were  involved  in  them. 


CHAPTER  XII 

THE    RIGHT    OF    POPULAR    SELF-GOVERNMENT 

"In  order  to  assert  our  rights,  acknowledge  our  duties  and 
proclaim  the  principles  upon  which  our  government  is  founded,  we 
declare: 

"Section  1.  That  all  political  power  is  vested  in  and  derived 
from  the  people;  that  all  government,  of  right,  originates  from  the 
people,  is  founded  upon  their  vv'ill  only,  and  is  instituted  solely  for 
the  good  of  the  whole. 

"Section  2.  That  the  people  of  the  state  have  the  sple  and 
exclusive  right  of  governing  themselves,  as  a  free,  sovereign  and 
independent  state;  and  to  alter  and  abolish  their  constitution  and 
form  of  government  whenever  they  may  deem  it  necessary  to  their 
safety  and  happiness,  provided  such  change  be  not  repugnant  to  the 
constitution  of  the  United  States." — Colorado  Constitution,  Bill  of 
Rights. 

The  struggle  to  secure  a  satisfactory  government  of 
cities  in  Colorado  has  been  long,  tedious  and  troublesome, 
and  it  is  not  yet  wholly  accomplished.  In  the  year  follow- 
ing the  admission  of  the  state  to  the  Union,  the  legislature 
(1877)  divided  the  cities  of  the  state  into  two  classes,  those 
with  more  than  15,000  inhabitants  constituting  the  first 
class,  while  those  with  from  2,000  to  15,000  inhabitants 
were  of  the  second  class.  The  terms  of  the  law  were  gen- 
eral, but  then,  as  now,  Denver  was  in  a  class  by  itself. 
Thus  early  the  legislature  recognized  the  principle  that  the 
municipalities  of  the  state  ought  not  all  to  have  exactly  the 
same  kind  of  government,  and  this  fact  was  further  recog- 
nized when  the  city  of  Denver  was  given  a  special  charter 
by  the  legislature  and  was  thus  removed  from  the  general 
laws  governing  the  cities  of  the  first  and  second  classes. 

Up  to  the  year  1901,  Colorado  cities,  like  the  cities  of 
other  American  states,  were  governed  by  political  machines. 
Primitively  and  primarily  these  machines  were  partisan, 
but  as  the  methods  of  machine  politics  becaine  more  effec- 


THE    RIGHT    OF    POPULAR    SELF-GOVERNMENT  227 

tive,  and  as  the  public  utility  corporations  came  to  have  a 
more  intimate  concern  in  the  affairs  of  politics  and  of  gov- 
ernment, the  machines  became  bi-partisan  in  the  sense  that 
the  activities  of  the  same  group  of  men  extended  through 
the  organization  of  both  the  two  principal  political  parties, 
and  they  became  non-partisan  in  the  sense  that  their  main 
purpose  was  not  to  accomplish  partisan  policies,  but  to  serve 
the  interests  of  the  machine  politicians  and  of  special  inter- 
ests, corporate  or  individual. 

In  1903,  after  years  of  political  discussion  and  of 
legislative  controversy,  there  came  before  the  Supreme  Court 
a  case,  entitled  People  vs.  Sours,  which  involved  the  essen- 
tial features  of  the  problem  of  municipal  government.  To 
a  greater  degree  than  either  the  Moyer  case,  the  Patterson 
case  or  the  Tool  case,  the  Sours  case  was  one  of  legal  tech- 
nicalities, but  back  of  the  issues  of  legislative  powers  and 
constitutional  limitations  were  important  principles  insepa- 
rably linked  with  the  right  of  the  people  to  govern  them- 
selves through  the  will  of  the  majority.  The  decision  in 
the  Sours  case  was  delivered  by  Justice  Steele,  who  thus 
early  in  his  judicial  career  found  himself  in  the  majority 
of  the  court,  but  that  decision  was  not  conclusive.  It  was 
practically  reversed  in  the  decisions  in  the  case  of  People 
vs.  Johnson  and  its  allied  cases  (1904-5),  from  which 
Justice  Steele  dissented;  and  it  was  sustained  and  restored 
in  the  later  decision  in  the  case  of  The  People  ex  rel.  Attor- 
ney General  vs.  Cassiday  et  al.  (50  Colo.,  503),  decided 
May,  1911.  The  case  of  Uzzell  vs.  Anderson  (38  Colo., 
page  32)  was  an  allied  case  with  special  reference  to  that 
part  of  the  old  Arapahoe  County  not  included  within  the 
city  and  county  of  Denver;  and  the  case  of  People  vs. 
Horan  (34  Colo.,  page  304)  is  still  another  portion  of  the 
com.plex  mass  of  litigation. 


228  ROBERT  WILBUR  STEELE 

All  of  these  cases,  with  others  more  or  less  directly 
connected,  must  be  considered  together,  for  it  cannot  be  said 
of  any  one  of  them  that  in  it  the  constitutional  questions 
and  the  principles  of  popular  free  government  were  focused 
and  determined.  All  of  them  involved  the  amendment  that 
added  the  twentieth  article  to  the  state  constitution,  and 
that  amendment  is  the  basic  charter  of  liberty  for  the  cities 
of  the  state.  It  was  not  primarily  so  intended,  for  in  its 
original  form  it  was  limited  to  the  city  of  Denver,  but  in 
the  course  of  its  passage  through  the  legislature  it  was 
amended  so  as  to  include  all  cities  of  the  first  and  second 
classes,  under  the  sweeping  provision:  "The  people  of  the 
city  and  county  of  Denver  are  hereby  vested  with,  and  they 
shall  always  have  the  exclusive  power  in  the  making,  alter- 
ing, revising  or  amending  their  charter,"  and  the  further 
provision :  "The  citizens  of  the  city  and  county  of  Denver 
shall  have  the  exclusive  power  to  amend  their  charter,  or  to 
adopt  a  new  charter,  or  to  adopt  any  measure  as  herein 
provided."  And  in  the  section  whereby  this  power  is 
extended  to  other  cities  of  the  state,  both  great  and  small, 
it  is  specifically  provided  that  these  cities  shall  have  "full 
power  as  to  real  and  personal  property,  public  utilities, 
works  or  ways." 

How  such  a  sweeping  grant  of  local  self-government 
and  of  manumission  from  servitude  to  the  allied  forces  of 
machine  politics  and  special  privilege  ever  slipped  past  the 
watchful  guardians  of  those  interests  in  house  and  senate 
at  that  time  must  always  remain  one  of  the  mysteries  of 
Colorado  politics.  But,  in  view  of  the  determined  and  per- 
sistent attack  made  upon  the  twentieth  article,  beginning 
almost  immediately  upon  its  adoption  by  the  people  and 
continuing  even  past  the  day  of  present  writing,  it  seems 
reasonable  to  suppose  that  its  importance  was  underesti- 
mated.    It   was   considered  to  be   merely  a  permit  to  the 


THE    RIGHT    OF    POPULAR    SELF-GOVERNMENT  229 

people  of  Denver  to  write  another  charter,  similar  in  its 
essential  features  to  that  under  which  they  had  been  pre- 
viously plundered  and  misgoverned,  and  its  broad  extent 
and  possibilities  were  not  generally  recognized,  even  though 
a  full  measure  of  credit  be  reserved  to  those  who  secured 
its  enactment  in  its  enlarged  form. 

The  decision  in  the  Sours  case  was  delivered  by  Justice 
Steele,  and  it  was  supported  in  a  special  concurrent  opinion 
by  Justice  William  H.  Gabbert,  who  came  to  the  Supreme 
bench  in  1897  as  a  Populist-Democrat.  Extended  quota- 
tions from  this  decision  are  reserved  for  the  following 
chapter,  but  a  few  sentences  show  clearly  that  Justice  Steele 
realized  the  importance  of  the  twentieth  article  and  that  he 
was  wholly  in  accord  with  its  purpose  to  give  the  people  of 
Colorado  cities  the  right  to  govern  themselves. 

"At  the  outset,  it  should  be  stated,"  he  said,  "that  every 
reasonable  presumption,  both  of  law  and  fact,  is  to  be 
indulged  in  favor  of  the  validity  of  an  amendment  to  the 
constitution  when  it  is  attacked  after  its  ratification  by  the 
people,"  and  with  that  single  sentence  he  swept  out  of  exist- 
ence the  entire  mass  of  technicalities  which  skillful  lawyers 
had  attempted  to  interpose  between  the  people  and  the  object 
of  their  will.  Again,  he  said :  "It  appears  to  be  a  universal 
rule  that,  unless  the  court  is  satisfied  beyond  a  reasonable 
doubt  that  the  constitution  has  been  violated  in  the  submis- 
sion of  a  constitutional  amendment,  the  amendment  must 
be  upheld.  This  is  not  a  flexible  rule,  to  be  applied  to  suit 
emergencies,  but  is  a  rule  adopted  to  secure  to  the  people 
the  right  they  have  to  change  the  organic  law  whenever 
necessary  for  their  safety  and  happiness.  It  means  that, 
whenever  the  will  of  the  people  has  been  ascertained  in  a 
manner  conforming  substantially  to  the  provisions  of  the 
constitution,  the  court  shall  brush  aside  all  merely  tech- 
nical obstructions,  without  regard  to  the  result.     It  is  not 


230  ROBERT  WILBUR  STEELE 

proper!)-  applied  by  merely  recognizing  and  stating  it  at 
the  beginning  of  an  opinion,  and  afterward  rejecting  every 
liberal  doctrine  of  construction  by  which  learned  judges  and 
learned  courts  have  been  able  to  reconcile,  and  permit  to 
stand,  each  within  its  own  sphere,  constitutional  or  statutory 
provisions  that  appear  to  be  repugnant." 

As  a  result  of  the  decision  in  the  Sours  case,  the  officers 
of  the  county  of  Arapahoe  and  of  the  city  of  Denver, 
according  to  the  manner  provided  in  the  amendment,  effec- 
tuated the  consolidation  into  the  city  and  county  of  Denver. 
A  charter  convention  was  held  and  the  product  of  its  labor 
was  presented  to  the  people  of  Denver,  and  by  them  rejected. 
A  second  convention  was  held  and  its  charter  was  approved, 
and  under  its  provisions  a  full  set  of  city-and-county  offi- 
cers were  elected  on  May  17,  1904,  and  assumed  their 
offices  without  protest  or  obstruction,  legal  or  otherwise. 
At  the  general  fall  election  of  that  year  the  county  offices 
would  have  been  filled  in  regular  order  if  the  consolidation 
had  not  been  made  effective.  The  Republican  convention 
met  and  adjourned  without  nominating  county  officers,  but 
appointed  a  committee  of  seven  prominent  attorneys,  which 
reported  that  the  convention  ought  to  reassemble  and  nomi- 
nate a  candidate  for  county  judge,  but  they  recommended 
that  no  further  nominations  be  made ;  and  such  action  was 
had  by  the  convention,  which  then  finally  adjourned.  At 
this  point  the  record  is  obscured  by  partisan  politics.  The 
Democrats,  claiming  that  the  Republicans,  through  their 
committee  on  vacancies,  would  nominate  county  candidates 
at  the  latest  moment,  completed  their  ticket  with  the  names 
of  the  then  acting  officials  of  the  city-and-county  of  Denver. 
The  Republicans,  claiming  justification  in  the  acts  of  the' 
Democratic  convention,  then  proceeded  to  do  what  the  Dem- 
ocrats said  the  Republicans  would  do,  and  nominated  a  full 
county  ticket.     The  election  which  followed  was  that  memo- 


THE    RIGHT    OF    POPULAR    SELF-GOVERNMENT  23 1 

rable  contest  in  which  the  state  tickets  were  headed  by- 
James  H.  Peabody  and  Alva  Adams,  and  in  which  the 
Supreme  Court  intervened  by  writ  of  injunction  and  by 
placing  watchers  at  the  polls.  The  Democratic  candidates 
had  a  majority  upon  the  face  of  the  returns;  the  Pvepub- 
licans  claimed  that  the  apparent  majorities  were  the  result 
of  extensive  frauds ;  the  Democrats  asserted  that,  with  all 
fraudulent  votes  eliminated,  they  still  had  a  lawful  and 
honest  plurality.  The  Supreme  Court,  declaring  that  it 
was  impossible  to  distinguish  and  segregate  the  honest  and 
legal  votes,  ordered  the  election  commission  to  reject  the 
entire  returns  in  certain  precincts,  and  thereby  gave  certifi- 
cates of  election  to  the  Republican  candidates  for  offices 
which  had  been  declared  non-existent  by  the  decision  of  the 
Supreme  Court  in  the  Sours  case.  (See  decision  in  Cassi- 
day  case,  paragraph  5,  page  278.)  These  Republican 
county  officers  thereupon  brought  proceedings  in  quo  war- 
ranto against  the  city-and-county  officials  who  were  elected 
in  May. 

The  principal  decision  of  the  Supreme  Court  was  in 
the  case  of  People  vs.  Johnson,  the  decision  being  en  banc 
and  delivered  by  Justice  Maxwell,  Justice  Steele  dissenting 
and  Justice  Gunter  concurring  in  the  dissenting  opinion. 
Although  the  effect  of  the  decision  in  the  Johnson  case  was 
exactly  contrary  to  the  effect  of  that  in  the  Sours  case,  the 
majority  of  the  court  undertook  to  establish  the  proposition 
that  the  later  decision  was  merely  carrying  the  principles 
set  forth  in  the  former  case  to  their  logical  conclusion.  The 
court  having  held  in  the  Sours  case  that  article  20  did  "not 
exempt  a  portion  of  the  state  from  the  provisions  of  the 
constitution  and  laws  of  the  state,"  the  decision  in  the  John- 
son case  declared  that  "the  people  cannot  by  amendment  to 
the  constitution  free  any  portion  of  the  state  from  any  part 
of  the  constitution."     The  Sours  decision  upheld  the  provi- 


232  ROBERT  WILBUR  STEELE 

sion  that  "the  citizens  of  the  city  and  county  shall  have 
exclusive  power  to  adopt  or  to  amend  their  charter  or  to 
adopt  any  measure  as  provided  in  the  amendment."  The 
Johnson  decision  declared  that  the  charter  convention  under 
the  amendment  had  no  authority  to  legislate  on  any  subject 
whatever  in  contravention  of  any  provision  of  the  constitu- 
tion relative  to  governmental  or  state  matters  or  to  county 
or  state  offices  and  officers,  but  that  its  authority  to  legislate 
is  limited  to  matters  purely  local  and  municipal  in  their 
character." 

The  decision  in  the  Sours  case  was  in  effect  that  the 
people  of  the  city  and  county  might  assign  to  city-and- 
county  officers  county  duties  prescribed  by  general  law,  and 
might  regulate  the  terms  of  such  employment.  The  effect 
of  the  Johnson  decision  was  that  the  people  of  the  city  and 
county  must  maintain  independent  county  officials  separate 
and  distinct  from  those  maintained  by  the  city. 

Into  the  Sours  decision  Justice  Steele  incorporated  that 
principle  of  construction  which  embodies  the  fullest  recog- 
nition of  the  sovereign  power  of  the  people  as  the  original 
source  of  official  authority  and  as  the  final  and  ultimate 
arbiter  of  every  appeal :  "Wherever  the  will  of  the  people 
has  been  ascertained  in  a  manner  conforming  substantially 
to  the  provisions  of  the  constitution,  the  court  shall  brush 
aside  all  merely  technical  obstructions,  without  regard  to 
the  result." 

Out  of  the  Sours  decision  itself  the  majority  of  the 
court  gathered  the  technical  material  upon  which  to  base  a 
decision,  not  merely  that  the  people  had  failed  to  do  what 
they  manifestly  desired  to  do,  but  that  they  had  no  author- 
ity or  way  to  do  what  they  desired  to  do. 

If  at  any  time  in  the  course  of  his  high  judicial  career 
Justice  Steele  needed  an  excuse  for  intemperance  of  thought 
or  language,  that  excuse  might  have  been  found  ready  at 


THE    RIGHT    OF    POPULAR    SELF-GOVERNMENT  233 

hand  when  the  decision  in  the  Johnson  case  not  only  drew 
from  his  propositions  conclusions  the  direct  opposite  of  his 
purpose,  but  perverted  his  own  statements  to  a  meaning 
quite  different  from  that  which  was  clearly  conveyed  by 
them.  Yet  one  may  look  in  vain  through  the  dissenting 
opinion  in  the  Johnson  case  for  any  trace  of  matter  or  of 
feeling  unbefitting  the  dignity,  the  calm  or  the  equipoise  of 
that  high  court.  The  circumstances  were  exasperating,  but 
he  made  no  complaint  of  injustice  to  himself.  Without 
yielding  an  inch  of  the  position  he  had  assumed,  he  pointed 
out  the  error  in  logic  and  what  he  believed  to  be  the  defect 
in  law  of  the  majority  decision,  and  left  the  incident  to  the 
judgment  of  fair-minded  men.  "The  writer  did  say,"  says 
Justice  Steele,  "in  substance  that  which  is  attributed  to  him, 
but  the  conclusions  drawn  from  what  he  said  are  to  be  found 
neither  in  the  Sours  case  nor  in  any  other  case.  The  court 
says" — in  the  Johnson  decision — "  'Under  the  language 
used  no  one  of  the  three  things  can  be  done  by  the  people, 
and  it  follows  that  no  portion  of  any  of  them  can  be  done ; 
that  no  portion  of  the  state  can  be  freed  from  any  portion 
of  the  constitution.'  It  requires  a  reversal  of  the  decision 
in  the  Sours  case  to  reach  the  conclusion  that  no  portion  of 
the  state  can,  by  constitutional  amendment,  be  freed  from 
any  provision  of  the  constitution.  For  it  was  held  in  posi- 
tive language  in  that  case  not  only  that  the  people  could 
but  that  they  had  freed  Denver  from  several  provisions  of 
the  constitution  by  making  article  20  a  part  of  their  consti- 
tution. '•'  *  "  It  is  to  be  regretted  that  this  court  felt 
in  duty  bound  to  undo  the  work  of  the  charter  convention 
and  to  deny  the  people  of  this  city  and  county  the  right  to 
provide  for  a  simple  and  economical  plan  of  government  as 
directed  by  the  constitution." 

In  the  Sours  case  Justice  Steele  had  declared  the  "uni- 
versal rule  that  unless  the  court  is  satisfied  beyond  a  reason- 


234  ROBERT    WILBUR    STEELE 

able  doubt  that  the  constitution  has  been  violated  in  the 
submission  of  a  constitutional  amendment,  the  amendment 
must  be  upheld."  And  he  added:  This  rule  "is  not  prop- 
erly applied  by  merely  recognizing  and  stating  it  at  the 
beginning  of  an  opinion,  and  afterward  rejecting  every 
liberal  doctrine  of  construction  by  which  learned  judges  and 
learned  courts  have  been  able  to  reconcile  and  permit  to 
stand,  each  within  its  own  sphere,  constitutional  or  statutory 
provisions  that  appear  to  be  repugnant."  These  sentences 
were  not  quoted  among  those  by  which  the  court  undertook 
to  support  its  decision  in  the  Johnson  case,  and  Justice 
Steele  refrained  from  repeating  them  in  his  forceful  argu- 
ment that  the  Sours  decision  did  not  bear  the  meaning 
imputed  to  it  or  warrant  the  conclusions  drawn  therefrom. 
The  fundamental  principle  involved  in  these  cases  was 
not  the  clashing  interests  of  two  rival  partisan  candidates, 
it  was  not  even  the  question  of  the  consolidation  of  the  city 
and  county  of  Denver,  but  it  was  the  right  of  the  people  of 
the  cities  to  local  self-government,  drawn  from  and  depend- 
ent upon  the  larger  right  of  the  people  of  the  state  to  govern 
themselves  and  to  alter  and  abolish  their  constitution  and 
form  of  government  whenever  they  may  deem  it  necessary 
to  their  safety  and  happiness,  provided  that  such  change  be 
not  repugnant  to  the  constitution  of  the  United  States. 
These  words,  quoted  from  the  bill  of  rights  of  the  Colorado 
constitution,  admit  of  but  one  reasonable  interpretation, 
which  is  that  the  makers  of  the  constitution  intended  to 
make  of  it  an  instrument  for  forwarding  and  a  shield  for 
defending  the  will  of  the  majority  of  the  people,  according 
to  the  basic  principles  of  the  American  system  of  govern- 
ment, and  not  an  obstacle  or  a  fetter  against  the  free  execu- 
tion of  that  will.  Yet  if  the  decision  in  the  Sours  case  as 
it  was  interpreted  in  the  Johnson  case  had  become  estab- 
lished as  the  supreme  and  fundamental  law  of  the  state, 


THE    RIGHT    OF    POPULAR    SELF-GOVERNMENT  235 

"that  no  portion  of  the  state  can  be  freed  from  any  provi- 
sion of  the  constitution,"  it  would  not  only  have  blocked 
the  road  to  a  reform  of  municipal  government,  but  it  would 
have  become  one  of  the  strongest  entrenchments  of  minority 
power  within  the  government  of  the  state.  If  the  judges  of 
the  Supreme  Court  had  the  right  to  impose  their  constitu- 
tional interpretations  as  a  restriction  upon  the  power  of  the 
people  of  the  state  to  establish  their  will  as  to  the  conditions 
for  the  government  of  cities,  those  judges  would  have  the 
same  right  to  impose  other  similar  limitations  upon  the 
people's  right  of  self-government,  which  is  so  broadly  and 
positively  declared  by  the  bill  of  rights. 

For  a  half  dozen  years  it  did  stand  as  the  last  word 
of  supreme  judicial  authority,  until  the  Supreme  Court, 
reconstituted  by  the  will  of  the  people  in  a  general  election, 
nullified  its  former  denial  of  the  sovereign  rights  of  the 
people  as  the  constitution-making  power,  and  restored  the 
original  doctrine  of  the  Sours  case,  as  stoutly  maintained 
by  Justice  Steele  in  the  Johnson  case,  to  its  primitive  mean- 
ing and  effect.  (See  page  277.)  Yet  even  in  those  years 
the  amendment  bore  a  precious  fruit  of  popular  liberty. 
The  Sours  decision  was  a  broad  approval  of  the  grant  of 
power  of  self-government  for  the  cities  of  the  state.  The 
Johnson  decision  denied  the  right  of  a  charter  convention 
to  legislate  concerning  county  offices  or  officers.  Under  the 
Sours  decision  other  cities  than  Denver  claimed  and  estab- 
lished their  right  of  local  self-rule,  wrote  their  own  charters 
and  adopted  that  form  of  government  which  seemed  to  them 
best  adapted  for  their  local  needs  and  conditions.  Even 
while  the  Johnson  decision  remained  in  force,  Grand  Junc- 
tion, Colorado  Springs  and  Pueblo  installed  the  commission 
plan  of  city  administration,  and  later  the  people  of  Denver 
amended  their  charter  to  a  similar  form. 


236  ROBERT    WILBUR    STEELE 

The  fundamental  wrong  of  the  old  system  was  that  it 
made  city  officials  unaccountable  to  the  people's  will.  Its 
greatest  weakness  was  that  it  denied  to  them  the  power 
necessary  to  the  proper  performance  of  their  duties.  To 
prevent  the  abuse  of  power,  power  had  been  divided  beyond 
the  limits  of  efficiency ;  checks  and  balances  had  been  multi- 
plied until  it  was  impossible  for  any  official  to  estimate 
correctly  the  bounds  of  his  own  duty  and  authority,  or  for 
any  citizen  to  know  what  official  should  be  held  responsible 
for  faults  or  abuses  in  the  city  government.  The  result 
was  that  the  city  official,  however  intelligent  or  well- 
meaning,  found  himself  utterly  unable  to  perform  his  plain 
duty  to  the  people.  He  came  into  office  as  the  nominee  and 
the  candidate  of  a  political  machine,  he  owed  his  election  to 
that  same  power,  which  effectively  enforced  its  authority  by 
means  of  the  party  rules  and  customs.  His  success  or  fail- 
ure in  office  and  his  future  preferment  in  positions  of  public 
authority  and  honor  seemed  to  depend  mainly  upon  his 
loyalty  to  the  machine  and  not  to  the  people,  and  if  he  set 
himself  resolutely  and  honestly  to  the  performance  of  his 
duty,  he  quickly  found  himself  opposed  by  a  combination 
of  political  and  selfish  forces,  with  which  the  meager  power 
allotted  to  him  was  quite  unable  to  cope. 

The  theory  of  the  commission  plan  is  to  give  a  full 
grant  of  public  power  to  public  officials  for  the  public 
advantage  and  the  public  defense ;  to  localize  that  authority 
so  that  it  may  be  at  all  times  recognizable  and  accountable ; 
and  to  make  all  officials  at  all  times  directly  and  immedi- 
ately answerable  to  the  people  for  an  abuse  of  that  power. 
The  details  of  the  commission  plan  in  their  application  to 
the  innumerable  local  conditions  of  American  cities,  great 
and  small,  have  not  been  fully  determined.  The  legal 
entanglements  of  this  radical  change  in  the  system  of 
municipal  government  have  not  been  completely  developed. 


THE    RIGHT    OF    POPULAR    SELF-GOVERNMENT  237 

The  principles  of  the  commission  form  in  making  effective 
the  will  of  the  people  in  opposition  to  the  conspiracies  of 
machine  politicians,  franchise  grabbers,  organized  law- 
breakers, and  other  criminal,  anarchistic  or  merely  merce- 
nary forces  of  the  cities,  are  a  part  of  the  principles  of  the 
American  system  of  free  government. 

The  decision  in  the  Sours  cases  affords  probably  the 
best  illustration  of  the  clearness  and  quickness  with  which 
Justice  Steele's  mind  reached  to  and  grasped  the  funda- 
mental principles  of  a  case  presented  for  his  consideration, 
while  his  dissenting  opinion  in  the  Johnson  case  shows  how 
logically  his  mind  maintained  the  principle  he  had  an- 
nounced, how  skillfully  he  avoided  the  pitfalls  of  special 
pleading,  and  how  resolutely,  powerfully  and  withal  calmly 
he  defended  that  which  he  knew  to  be  right. 

"Judge  Steele  was  not  much  interested  in  the  techni- 
calities of  the  law,"  said  one  lawyer  who  knew  him  well. 
"He  gave  slight  attention  and  little  weight  to  the  skillful 
arguments  of  those  attorneys  who  drew  their  material  from 
the  maze  of  precedents  and  the  fine  shades  of  legal  defini- 
tions. But  when  a  principle  of  justice  was  at  stake,  or  when 
there  was  involved  some  impairment  of  the  rights  of  the 
people,  his  keenest  interest  was  immediately  aroused,  and 
the  cause  of  liberty  never  had  a  more  earnest  or  a  more 
powerful  champion." 


CHAPTER  XIII 

THE  DECISIONS  IN  THE  RUSH   AMENDMENT  CASES 

In  the  case  of  The  People  ex  rel.  Elder  as  Treasurer 
of  the  City  and  County  of  Denver  vs.  Sours  (31  Colo.,  page 
369),  Justice  Robert  W.  Steele  delivered  the  opinion  of  the 
court,  which  was  supported  by  a  special  concurrent  opinion 
of  Justice  Gabbert.  Chief  Justice  Campbell  filed  a  dissent- 
ing opinion. 

"At  the  time  of  the  filing  of  the  pleadings  in  the  case," 
said  Justice  Steele,  "we  determined  that  the  burden  was 
upon  the  respondent  to  establish  the  fact  that  the  constitu- 
tion had  been  violated  in  proposing  and  submitting  the 
amendment.  At  the  outset  it  should  be  stated  that  every 
reasonable  presumption,  both  of  law  and  fact,  is  to  be 
indulged  in  favor  of  the  validity  of  an  amendment  to  the 
constitution  when  it  is  attacked  after  its  ratification  by  the 
people.  In  the  determination  of  these  questions  we  ought 
constantly  to  keep  in  mind  the  declaration  of  the  people  in 
the  bill  of  rights: 

"  'That  the  people  of  this  state  have  the  sole  and  exclusive 
right  of  governing  themselves,  as  a  free,  sovereign  and  independent 
state;  and  to  alter  and  abolish  their  constitution  and  form  of  gov- 
ernment whenever  they  may  deem  it  necessary  to  their  safety  and 
happiness;'  , 

and   we   should   examine   the   objections   which   have   been 

raised  against  the  validity  of  this  amendment  from  the 
viewpoint  of  a  fair  and  liberal  construction,  rather  than 
from  that  of  one  which  unnecessarily  embarrasses  the  exer- 
cise of  the  right  of  amendment.  As  was  said  by  Judge 
Handy  in  1856  in  delivering  the  opinion  of  the  court  in 
Green  vs.  Weller  (32  Miss.,  684), 

"  'There  is  nothing  in  the  nature  of  the  submission  which  should 
cause  the  free  exercise  of  it  to  be  obstructed  or  that  could  render  it 


THE  DECISIONS  IN  THE  RUSH  AMENDMENT  CASES        239 

dangerous  to  the  stability  of  the  government;  because  the  measure 
derives  all  its  vital  force  from  the  action  of  the  people  at  the  ballot 
box,  and  there  never  can  be  danger  in  submitting,  in  an  established 
form,  to  a  free  people,  the  proposition  whether  they  will  change 
their  fundamental  law.  The  means  provided  for  the  exercise  of 
their  sovereign  right  of  changing  their  constitution  should  receive 
such  a  construction  as  not  to  trammel  the  exercise  of  the  right. 
Difficulties  and  embarrassments  in  its  exercise  are  in  derogation  of 
the  right  of  free  government,  which  is  inherent  in  the  people  and 
the  best  security  against  tumult  and  revolution  is  in  the  free  and 
unobstructed  privilege  to  the  people  of  the  state,  to  change  their 
constitution  in  the  mode  prescribed  by  the  instrument.' 

******* 

"It  is  said  that  the  constitution  does  not  require  that  a 
proposed  constitutional  amendment  be  enrolled,  and  that, 
therefore,  we  should  not  consider  the  fact  that  an  enrolled 
bill  has  been  filed  with  the  secretary  of  state,  but  should 
confine  our  investigation  to  the  legislative  journals;  and,  if 
there  is  a  discrepancy  between  the  two  journals,  that  the 
constitutional  provision  that  the  proposal  shall  be  entered 
in  full  upon  legislative  journals  has  not  been  complied  with. 
*  ^i  •-;:  w^e  think  we  should  not  be  restricted  in  our 
investigation  to  the  journals  of  the  two  houses,  but  should 
determine,  as  a  matter  of  fact,  from  all  the  evidence  which 
can  be  produced  of  a  public  nature,  whether  the  bill  as 
passed  by  the  senate  and  by  the  house  was  the  same 
bill.     *     *     - 

"An  inspection  of  the  manuscript  journal  of  the  house 
shows  that  the  printed  bill  (before  amendment)  was  inserted 
bodily  in  the  house  journal,  and  it  seems  clear  that  the 
failure  to  make  the  change  made  by  the  senate  was  a  mere 
clerical  omission  on  the  part  of  the  employe  of  the  house. 
This  amendment,  as  were  the  amendments  in  Kansas,  was 
discussed  for  nearly  a  year  before  its  submission  to  the 
people;  it  bore  the  endorsement  of  every  political  party; 
it  received  at  the  polls  more  votes  than  were  theretofore 
cast  for  any  other  amendment  submitted  to  the  people.  It 
is  shown  beyond  a  reasonable  doubt  that  the  bill  as  amended 


240  ROBERT  WILBUR  STEELE 

passed  the  house ;  and  if  the  will  of  the  people  is  to  be 
thwarted  by  the  design  or  carelessness  of  an  employe  of  the 
legislature,  then  are  the  foundations  of  our  government 
unstable  and  unenduring. 

"The  objections  to  the  provisions  of  the  amendment  ■ 
itself,  and  to  the  extent  that  it,  either  necessarily  or  unneces- 
sarily, changes  existing  rules  of  law  applicable  to  the 
municipal  and  quasi-municipal  corporations  embraced  within 
the  territorial  limits  of  the  city  and  county  of  Denver,  are 
more  grave  and  important  than  the  one  just  passed  upon. 
It  is  contended  that  the  proposed  amendment  violates  the 
provisions  of  the  constitution  concerning  proposals  of 
amendments  by  the  legislature  because:  1.  It  adds  a  new 
article  to  the  constitution.  2.  It  amends  more  than  six 
articles  of  the  constitution ;  if  not,  it  amends  more  than  one 
article,  and  amendments  to  five  other  articles  were  sub- 
mitted by  the  legislature  at  the  same  session.  3.  It  contains 
distinct  amendments  of  the  constitution  that  should  have 
been  submitted  separately.  4.  The  amendment  to  the  con- 
stitution that  authorizes  six  amendments  is  itself  unconsti- 
tutional. 5.  It  was  submitted  under  a  deceptive  and  mis- 
leading title.  It  is  also  contended  that  the  amendment  is 
inoperative  and  void,  even  though  properly  proposed  and 
submitted,  because:  1.  It  violates  the  provision  of  the 
fourteenth  amendment  to  the  constitution  of  the  United 
States  that  'no  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  state  deprive  any  person  of 
life,  liberty  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws.'  2.  It  violates  the  provision  of  section  4 
of  the  enabling  act  providing  that  the  constitution  shall  be 
republican  in  form  *  *  *  and  not  be  repugnant  to 
the  constitution  of  the  United  States  and  to  the  principles 


THE  DECISIONS  IN  THE  RUSH  AMENDMENT  CASES        24I 

of  the   Declaration  of  Independence.     3.    Its  operation  is 
dependent  upon  contingencies. 

"Counsel  say :  '*  *  *  this  instrument  says  that 
the  city  and  county  of  Denver  can  adopt  miy  measure,  and 
shall  always  have  the  exclusive  power  to  make,  alter  and 
revise  their  charter.  *  *  *  That  language  means 
something.  It  displaces,  and  was  intended  to  displace,  the 
constitution,  the  laws,  and  the  general  assembly.'  If  this 
amendment  must  be  given  that  construction  it  cannot  be 
sustained.  Even  by  constitutional  amendment,  the  people 
cannot  set  apart  any  portion  of  the  state  in  such  a  manner 
that  that  portion  of  the  state  shall  be  freed  from  the  con- 
stitution, or  delegate  the  making  of  constitutional  amend- 
ments concerning  it  to  a  charter  convention,  or  give  to  such 
charter  convention  the  power  to  prescribe  the  jurisdiction 
and  duties  of  public  officers  with  respect  to  state  govern- 
ment as  distinguished  from  municipal,  or  city  government. 
The  duties  of  judges  of  the  District  Court,  county  judges, 
district  attorneys,  justices  of  the  peace,  and,  generally,  of 
county  officers  are  mainly  governmental ;  and,  so  far  as 
they  are  governmental,  they  may  not  be  controlled  by  other 
than  state  agencies  without  undermining  the  very  founda- 
tion of  our  government.  Under  the  constitution  of  the 
United  States,  the  state  government  must  be  preserved 
throughout  the  entire  state ;  and  it  can  be  so  preserved  only 
by  having  within  every  political  subdivision  of  the  state 
such  officers  as  may  be  necessary  to  perform  the  duties 
assumed  by  the  state  government,  under  the  general  laws 
as  they  now  exist  or  as  they  may  hereafter  exist. 

"*  *  *  The  amendment  is  to  be  considered  as  a 
whole,  in  view  of  its  expressed  purpose  of  securing  to  the 
people  of  Denver  absolute  freedom  from  legislative  inter- 
ference in  matters  of  local  concern ;  and,  so  considered  and 


242  ROBERT  WILBUR  STEELE 

interpreted,  we  find  nothing  in  it  subversive  of  the  state 
government,  or  repugnant  to  the  constitution  of  the  United 
States. 

"It  is  said  that  the  amendment  is  void  because  it  is 
dependent  upon  future  contingencies.  That  the  proposal, 
if  valid,  became  a  part  of  the  constitution  upon  its  ratifica- 
tion ;  whereas,  the  provisions  relative  to  the  creation  of  a 
charter  for  Denver  depend  upon  the  will  of  the  people, 
which  may  never  be  exercised.  In  other  words,  that  the 
amendment  is  invalid  because  it  authorizes  the  people  of 
the  city  and  county  of  Denver  to  make  a  charter  and  that 
the  people  of  Denver  may  never  make  one.  This  is  not  a 
contingency  within  the  meaning  of  the  law. 

"It  is  stated  that  the  proposal  was  submitted  under  a 
misleading  and  deceptive  title.  There  is  no  proof  that  any 
elector  was  deceived  by  the  title  under  which  the  amend- 
ment was  submitted,  and  the  proposed  amendments  were 
published  in  full  in  a  newspaper  in  each  county  of  the  state 
for  four  weeks  preceding  the  election.  In  this  connection  it 
is  urged  that  the  people  who  voted  for  this  amendment 
constituted  only  a  minority  of  the  electors  of  the  state,  and 
that  only  about  one-third  of  the  electors  expressed  them- 
selves upon  the  subject  of  the  amendment.  This  is  not 
very  important,  for  we  should  be  compelled  to  sustain  this 
amendment  though  but  a  bare  majority  of  the  electors  had 
favored  it  if,  in  our  opinion,  it  was  legally  submitted  and 
ratified,  and  we  should  declare  it  invalid  if  its  invalidity 
were  established  beyond  a  reasonable  doubt,  although  it  had 
received  the  unanimous  support  of  the  electors.  It  is  hard 
to  account  for  the  apparent  indifference  of  the  people  on 
the  occasion  of  the  submission  to  them  of  changes  in  their 
organic  law.  The  indifference  which  prevails  in  Colorado 
prevails  in  other  states,  and  it  rarely  occurs  that  a  proposed 
amendment  to  the  constitution  receives  the  attention  of  more 


THE  DECISIONS  IN  THE  {LUSH  AMENDMENT  CASES        243 

than  one-half  of  those  who  vote  for  candidates  for  office. 
In  the  absence  of  a  constitutional  provision  to  the  contrary, 
the  people  who  do  not  express  themselves  upon  the  subject 
submitted  to  them  are  regarded  as  having  assented  to  a 
determination  by  those  who  do  express  themselves. 

"The  amendment  which  authorizes  six  amendments  is 
attacked  because,  as  it  is  said,  it  was  not  the  intention  of 
the  framers  of  our  constitution  to  permit  revision  and  alter- 
ation of  the  constitution  except  by  constitutional  convention. 
The  original  constitution  does  not  say  that  the  article 
entitled  'Amendments'  cannot  be  amended,  but  says  the 
legislature  shall  not  propose  amendments  to  more  than  one 
article  at  one  session. 

******* 

"In  the  main  we  regard  the  questions  presented  as  judi- 
cial, although  in  the  briefs  and  arguments  upon  the  rele- 
vancy of  certain  provisions  of  the  amendment  to  its  main 
object  or  purpose,  questions  of  policy  and  expediency  have 
been  discussed  which  are  legislative  rather  than  judicial; 
but  we  are  clearly  of  opinion  that  the  legislature  cannot 
propose  an  amendment  to  the  constitution  not  in  substantial 
compliance  with  its  provisions. 

"It  appears  to  be  a  universal  rule  that,  unless  the  court 
is  satisfied  beyond  a  reasonable  doubt  that  the  constitution 
has  been  violated  in  the  submission  of  a  constitutional 
amendment,  the  amendment  must  be  upheld.  This  is  not 
a  flexible  rule,  to  be  applied  to  suit  emergencies,  but  it  is  a 
rule  adopted  to  secure  to  the  people  the  right  they  have  to 
change  the  organic  law  whenever  necessary  for  their  safety 
and  happiness.  It  means  that,  whenever  the  will  of  the 
people  has  been  ascertained  in  a  manner  conforming  sub- 
stantially to  the  provisions  of  the  constitution,  the  court 
shall  brush  aside  all  merely  technical  obstructions  without 
regard  to  the  result.     It  is  not  properly  applied  by  merely 


244  ROBERT    WILBUR    STEELE 

recognizing  and  stating  it  at  the  beginning  of  an  opinion 
and  afterward  rejecting  every  liberal  doctrine  of  construc- 
tion by  which  learned  judges  and  learned  courts  have  been 
able  to  reconcile  and  permit  to  stand,  each  within  its  own 
sphere,  constitutional  or  statutory  provisions  that  appear  to 
be  repugnant. 

"We   are   not  only  not   satisfied  beyond   a  reasonable 
doubt  that  the  constitution  has  been  violated,  but  are  of  the 
opinion  that  the  amendment  proposed  can  be  sustained  upon 
purely  legal  principles,  supported  by  adjudicated  cases. 
******* 

"We  therefore  conclude  that  the  disagreement  between 
the  journals  is  a  mere  clerical  mistake,  that  the  same  bill  in 
fact  passed  both  houses,  and  that  the  entering  by  mistake 
upon  the  journal  of  the  house  of  the  half  dozen  words 
quoted  does  not  violate  the  provision  of  the  constitution 
requiring  the  proposal  to  be  entered  in  full  upon  the  jour- 
nals of  both  houses.  That,  under  the  constitution,  the  legis- 
lature may  propose  an  amendment  as  an  original  article  or 
as  an  amendment  to  an  existing  article.  That  the  limitation 
that  the  legislature  may  not  propose  amendments  to  more 
than  six  articles  of  the  constitution  at  the  same  session  does 
not  apply  to  constructive  amendments,  or  amendments  by 
implication.  That  an  amendment  may  embrace  more  than 
one  subject.  That  if  an  amendment  embraces  more  than 
one  subject,  such  subjects  need  not  be  separately  submitted 
if  they  are  germane  to  the  general  subject  of  the  amend- 
ment, or  if  they  are  so  connected  with  or  dependent  upon 
the  general  subject  that  it  might  not  be  desirable  that  one 
be  adopted  and  not  the  other. 

"That  this  amendment  does  relate  to  a  single,  definite 
object  or  purpose,  and  that  the  several  matters  objected  to 
as  not  germane  thereto  do  appear  to  be  so  connected  with  or 
dependent  upon  that  object  or  purpose  that  they  ought  not 
to  have  been  separately  submitted. 


THE  DECISIONS  IN  THE  RUSH  AMENDMENT  CASES        245 

"We  have  examined  all  the  questions  presented,  and 
have  disposed  of  those  we  regard  as  essential  to  a  deter- 
mination of  the  case. 

"We  do  not  hold  that,  in  proposing  amendments  to 
the  constitution,  the  document  itself  can  be  ignored,  or  that, 
because  the  people  have  ratified  it,  an  amendment  proposed 
in  violation  of  the  constitution  nevertheless  becomes  a  part 
of  that  instrument ;  but  hold  that  in  the  proposal  and  sub- 
mission of  this  amendment  the  constitution  has  not  been 
violated. 

"We  are  not  unmindful  of  the  fact  that  authorities 
have  been  cited  which  support  views  contrary  to  many  of 
those  herein  stated,  but  when  a  constitutional  provision  is 
fairly  susceptible  of  two  interpretations — one  which  will 
overthrow  the  will  of  the  majority  as  ascertained  at  a  gen- 
eral election,  will  cast  discredit  upon  amendments  that  have 
been  long  acted  upon  as  part  of  the  constitution,  and  will 
convict  legislature  after  legislature  of  a  disregard  for  the 
provisions  of  the  constitution;  and  one  which  will  produce 
the  contrary  result — our  duty  is  plain. 

"Let  judgment  be  entered  in  favor  of  the  petitioner,  in 
accordance  with  the  prayer  of  the  petition." 

THE  DISSENTING  OPINION   IN  THE  JOHNSON   CASE 

In  the  case  of  The  People  ex  rel.  The  Attorney  Gen- 
eral vs.  Johnson  (34  Colo.,  page  143),  Justice  Maxwell 
delivered  the  opinion  of  the  court  en  banc.  Justice  Steele 
filed  a  dissenting  opinion,  in  which  Justice  Gunter  con- 
curred. 

Justice  Steele  said : 

"Whether  article  20  of  the  constitution  of  Colorado 
does  or  does  not  confer  upon  the  people  of  the  city  and 
county  of  Denver  the  power  to  provide  by  charter  for  an 
additional   county  judge  within  the   city   and   county   is   a 


246  ROBERT  WILBUR  STEELE 

fairly  debatable  question,  and  depends  upon  an  interpreta- 
tion of  the  article  itself  with  a  view  to  determining  its  true 
intent  and  purpose.  This  the  court  has  not  attempted ;  but 
it  has  found  in  the  general  propositions  announced  in  the 
Sours  case  to  the  effect  that  there  must  be,  within  every 
political  subdivision  of  the  state,  some  agency  for  perform- 
ing the  governmental  duties  of  the  state  in  accordance  with 
the  general  laws  of  the  state,  satisfactory  authority  for 
declaring  it  to  be  'stare  decisis,'  not  only  that  there  cannot 
be  two  county  judges  within  the  city  and  county  of  Denver, 
but  that  the  plan  of  joint  city  and  county  government,  by  a 
single  set  of  officers,  as  provided  for  by  the  article,  must  be 
overthrown  and  held  for  naught,  and  a  double  set  of  offi- 
cers— city  officers  and  county  officers — installed  and  main- 
tained in  a  single  body  politic  and  corporate  known  as  the 
city  and  county  of  Denver.  I  shall,  therefore,  shorten  the 
discussion  by  simply  contending  that  there  is  nothing  either 
in  the  Sours  case,  or  in  any  other  case,  for  that  matter,  to 
justify  the  conclusion  of  the  court  that  the  people  of  the 
city  and  county  of  Denver  had  no  authority  to  legislate  in 
any  particular  with  respect  to  the  offices  of  sheriff,  treasurer, 
assessor,  clerk  and  recorder,  justice  of  the  peace  or  constable, 
or  dispense  with  county  commissioners.  I  believe  that  they 
have  just  such  authority  as  was  conferred  upon  them  by 
article  20 — conferred  expressly  or  by  necessary  implication 
— and  none  other. 

"In  the  Sours  case  it  was  said,  arguendo,  that  it  would 
be  subversive  of  state  government  to  give  to  the  people  of 
the  city  and  county  of  Denver  the  power  to  adopt  aivy 
measure,  in  the  broad  sense  contended  for  by  counsel,  and 
therefore  the  words  in  section  5,  'or  to  adopt  any  measure 
as  herein  provided,'  were  construed,  as  limited  by  the  con- 
text, not  to  authorize  the  charter  convention  to  propose 
measures  changing  governmental   acts   and   duties ;   and  it 


THE  DECISIONS  IN  THE  RUSH  AMENDMENT  CASES        247 

was  held  that  such  duties  were  intended  to  remain  under 
the  control  of  the  legislature  and  of  the  general  laws.  There 
is  nothing  in  the  Sours  case  holding  or  intimating  that  these 
governmental  duties  could  not  be  performed  by  a  single  set 
of  officers  for  the  city  and  county,  or  that  such  officers  could 
not  be  elected  at  a  single  election ;  and  no  such  construction 
was  even  contended  for  by  counsel  opposing  the  amendment. 
The  Sours  case  was  regarded  by  everybody,  until  a  contro- 
versy arose  as  to  the  power  of  the  people  by  charter  to 
increase  the  number  of  county  judges,  as  settling  a  proposi- 
tion that  article  20  was  legally  adopted  by  the  people  as  a 
part  of  the  constitution,  and  that  it  was  feasible  and  legal 
throughout  when  given  the  construction  that  in  prescribing 
the  'jurisdiction,  term  of  office,  duties  and  qualifications  of 
all  such  officers,'  it  did  not  mean  that  the  charter  convention 
could  so  prescribe  in  cases  where  it  would  operate  to  hinder 
the  performance  of  the  acts  and  duties  required  of  county 
officers  to  be  done  by  the  constitution  or  by  the  general  law, 
as  far  as  applicable  to  the  changed  conditions  of  the  new 
municipality. 

*  *  •*  *  *  *  * 

"The  charter  convention  following  the  decision  in  the 
Sours  case  made  no  attempt  to  dispense  with  any  constitu- 
tional or  statutory  requirement  as  to  the  jurisdiction,  duties 
or  qualifications  of  officers  performing  governmental  duties ; 
and  so  the  question  before  the  court  really  was  whether  that 
convention  was  authorized  to  make  a  mere  change  in  the 
term  of  office  and  time  of  election  of  an  officer  performing 
governmental  duties.  And  it  does  not  follow  by  any  rule 
of  logic  or  of  judicial  construction  that  the  exercise  of  a 
power  expressl)^  given  that  does  not  or  cannot  if  reasonably 
or  sensibly  exercised  interfere  in  the  slightest  degree  with 
the  governmental  duties  required  to  be  performed  within 
this  consolidated  city  and  county  implies  the  right  to  legis- 


248  ROBERT    WILBUR    STEELE 

late  upon  any  other  matter  whatever.  The  right  to  legis- 
late is  to  be  found  in  article  20,  or  does  not  exist;  and  it  is 
res  adjudicata  by  the  Sours  case  that  article  20  is  a  part  of 
the  constitution  of  Colorado  and  therefore  is  itself  consti- 
tutional. 

"The  main  contention  in  the  Sours  case  was,  not  that 
the  municipality  created  by  article  20  was  unrepublican, 
but  that  the  article  embraced  several  subjects  and  amended 
more  articles  of  the  constitution  than  was  permitted  by  that 
instrument.  It  was  conceded  by  all  that  many  of  the  arti- 
cles of  the  constitution  were  modified,  limited  or  abrogated 
so  far  as  the  territory  set  apart  as  a  new  city  and  county 
was  concerned  by  article  20. 

******* 

"And  so  I  say  that  this  court  ought  to  have  held  that 
the  provisions  of  article  20  empowering  the  people  of  the 
city  and  county  to  have  for  their  new  municipality  a  single 
set  of  officers,  to  be  elected  or  appointed  at  such  times  as 
the  charter  might  provide,  was  a  valid  provision  not  per- 
versive of  state  government  or  unrepublican  in  form,  and 
that  the  suggestion  that  the  people  might  select  officers  for 
life  was  too  remote  and  too  speculative  to  be  entitled  to 
serious  consideration. 

"In  the  Sours  case  it  was  said :  'Under  the  constitution 
of  the  United  States  the  state  government  must  be  preserved 
throughout  the  entire  state ;  and  it  can  be  so  preserved  only 
by  having  within  every  political  subdivision  of  the  state 
such  officers  as  may  be  necessary  to  perform  the  duties 
assumed  by  the  state  government  under  general  laws  as  they 
now  exist  or  as  they  may  hereafter  exist.'  And  it  was  held 
that  it  was  not  contemplated  by  the  article  to  relinquish 
state  government  within  the  city  and  county  of  Denver 
because  the  article  expressly  provided  that  the  charter 
adopted  should  designate  the  officers  who  should  perform 


THE  DECISIONS  IN  THE  RUSH  AMENDMENT  CASES        249 

the  acts  and  duties  of  county  ofFicers.     Because  the  article 
provided  that  the  citizens  of  the  city  and  county  of  Denver 
should  have  exclusive  power  to  adopt  a  new  charter  or  to 
adopt  any  measure  it  was  contended  that  the  constitution 
and  laws  and  the  general   assembly  were  displaced  within 
the  city  and  county,  and  to  answer  this  statement  it  was 
said,  in  addition  to  what  I  have  quoted,  'The  amendment 
is  to  be  considered  as  a  whole  in  view  of  its  express  purpose 
of  securing  to  the  people  of  Denver  absolute  freedom  from 
legislative  interference  in  matters  of  local  concern.'     The 
writer  of  the  opinion  was  not  undertaking  by  hostile  con- 
struction to  nullify  the  article  20  nor  to  argue  away  the 
plain  provisions  of  the  article  which  do  not  admit  of  inter- 
pretation or  construction  because  they  interpret  themselves, 
but  he  was  undertaking  to  give  the  effect  intended  by  the 
people.     The  provisions  of  the  article  that  the  officers  of 
the  city  and  county  of  Denver  shall  be  such  as  by  appoint- 
ment or  election  may  be  provided  for  by  charter  can  have 
but  one  construction.     But  the  language  of  section  5  of  the 
article  providing  that  the  citizens  of  Denver  shall  have  the 
exclusive  power  to  amend  their  charter  or  to  adopt  a  new 
charter  or  to  adopt  any  measure  as  therein  provided  was 
claimed  to  extend  to  every  subject  and  was  authority  for 
the  people  of  Denver  to  enact  any  law  embracing  any  sub- 
ject.  And  it  was  held  that  the  authority  of  the  people  to  leg- 
islate through  charter  and  otherwise  extended  only  to  mat- 
ters of  local  concern ;  that  is,  to  matters  affecting  the  new 
municipality.     That  did  not  mean  that  the  city  and  county 
should  not  provide  for  its  officers  as  expressly  directed  by 
article  20;  it  did  mean  that  the  people  of  Denver  were  not 
given  power  nor  was  it  intended  to  grant  them  power  to 
legislate  upon   general   subjects   such   as   crimes,   negotiable 
instruments,  civil  procedure  or  any  other  subject  not  appli- 
cable to  local  government  except  as  directed  and  empowered 
by  article  20. 


250  ROBERT  WILBUR  STEELE 

"The  court  says  that  it  is  held  in  the  Sours  case  that 
the  people  cannot: 

"  '1.  Free  any  portion  of  the  state  from  the  operation 
of  the  constitution. 

"  '2.  Delegate  to  a  charter  convention  the  making  of 
constitutional  amendments. 

"  '3.  Give  to  a  charter  convention  the  power  to  pre- 
scribe the  jurisdiction  and  duties  of  public  officers  with 
respect  to  state  government  as  distinguished  from  the  munic- 
ipal or  city  government.' 

"Although  the  language  used  is  not  that  employed  by 
the  writer  of  the  opinion  in  the  Sours  case  it  is  sufficiently 
accurate  for  the  purposes  of  this  discussion.  The  writer 
did  say  in  substance  that  which  is  attributed  to  him,  but  the 
conclusions  drawn  from  what  he  said  are  to  be  found  neither 
in  the  Sours  case  nor  in  any  other  case.  The  court  says : 
'Under  the  language  used  no  one  of  the  three  things  can  be 
done  by  the  people,  and  it  follows  that  no  portion  of  any 
of  them  can  be  done ;  that  no  portion  of  the  state  can  be 
freed  from  any  portion  of  the  constitution.' 

"It  requires  a  reversal  of  the  opinion  in  the  Sours  case 
to  reach  the  conclusion  that  no  portion  of  the  state  can,  by 
constitutional  amendment,  be  freed  from  any  provision  of 
the  constitution.  For  it  was  held  in  positive  language  in 
that  case  not  only  that  the  people  could,  but  that  they  had 
freed  Denver  from  several  provisions  of  the  constitution 
by  making  article  20  a  part  of  their  constitution.  But, 
because  it  is  stated  in  the  opinion  in  the  Sours  case  that  it 
was  the  express  purpose  of  article  20  to  secure  to  Denver 
freedom  from  legislative  interference  in  matters  of  local 
concern,  it  is  asserted  that,  'If  the  majority  of  the  court  in 
the  Sours  case  had  been  of  the  opinion  that  article  20  had 
for  its  purpose  the  securing  to  the  people  of  Denver  abso- 
lute  freedom   from   legislative   interference   in   all   matters 


THE  DECISIONS  IN  THE  RUSH  AMENDMENT  CASES        25I 

relating  to  county  and  state  governmental  offices,  officers 
and  functions,  the  inevitable  conclusion  would  have  fol- 
lowed that  the  amendment  would  have  been  held  subversive 
of  a  republican  form  of  government  and  repugnant  to  the 
constitution  of  the  United  States.'  The  court  then  proceeds 
to  show  that  the  provisions  of  the  charter  are  in  conflict 
with  article  6  of  the  constitution.  It  was  held  in  positive 
terms  in  the  Sours  case  that  article  20  did  amend,  limit, 
repeal  or  abrogate  very  many  of  the  articles  of  the  constitu- 
tion, but  that  such  changes  were  incidental  merely  and  did 
not  render  article  20  invalid;  that  article  20  created  a  new 
sort  of  municipality  having  the  combined  powers  of  city 
and  county  governments ;  that  the  powers  of  city  and  county 
municipalities  being  essentially  different,  in  investing  this 
new  municipality  with  the  powers  of  both,  it  became  neces- 
sary to  modify  the  provisions  of  the  constitution  relative  to 
municipal  affairs  by  providing  new  ones  applicable  to  such 
combined  government.  'But,'  it  was  said,  'this  is  not  an 
amendment  of  those  provisions  such  as  in  our  judgment  was 
in  contemplation  by  the  framers  of  the  constitution,  because 
the  constitutional  provisions  that  are  abrogated  as  to  the  city 
and  county  of  Denver  remain  in  force  generally  through- 
out the  state.'  And  when  the  court  holds  that  the  charter 
provision  relative  to  county  judges  is  invalid  because  it 
violates  article  6  of  the  constitution  and  holds  that  other 
provisions  of  the  constitution  are  violated  when  the  charter 
provided  for  the  terms  and  qualifications  of  other  county 
officers,  it  ignores  the  provisions  of  article  20,  overlooks  the 
fundamental  rule  in  the  construction  of  constitutions  and 
statutes  that  a  special  provision  controls  the  general  one  and 
that  both  may  stand ;  misconstrues  the  decision  in  the  Sours 
case  which  holds  that  article  20  amended  and  modified  very 
many  of  the  articles  of  the  constitution  by  making  special 
provisions   for   the   government  of   Denver ;   and  bases   its 


252  ROBERT  WILBUR  STEELE 

decision  upon  the  doctrine  the  direct  opposite  of  that  main- 
tained in  the  Sours  case.  For  when  the  people  of  the  state 
granted  to  Denver  by  article  20  power  to  select  public  offi- 
cers, fix  their  salaries,  designate  a  time  for  their  election, 
although  they  relinquished  a  power  theretofore  retained  by 
them  or  delegated  to  the  legislature,  they  but  granted  to 
Denver  power  to  legislate  in  matters  of  local  concern;  and 
when  the  people  required  that  the  charter  of  the  city  and 
county  should  designate  the  officers  who  should  respectively 
perform  the  acts  and  duties  required  of  county  officers  to  be 
done  by  the  constitution  or  by  general  law  as  far  as  appli- 
cable, they  declared  that  they  did  not  relinquish  the  right 
to  require  the  performance  of  government  duties  within  the 
territory  of  the  city  and  county  and  they  did  not  free  Denver 
from  the  constitution,  because  article  20  is  a  part  of  the 
constitution,  and  every  article  of  the  constitution  is  applica- 
ble to  Denver  unless  article  20  otherwise  provides. 

"The  people  of  the  state  created  of  the  territory  a 
municipality  with  county  and  city  powers.  The  boundaries 
of  the  city  and  county  were  co-terminous,  the  territory 
densely  populated.  Property  within  the  territory  was  owned 
by  county  and  city  and  town  governments  and  was  by  article 
20  declared  to  be  the  property  of  the  city  and  county. 
Within  the  territory  were  several  school  districts.  By  the 
article  they  were  consolidated.  No  reason  is  apparent  why 
there  should  be  two  treasurers  to  handle  funds  raised  by 
taxation  or  why  there  should  be  two  bodies  having  control 
of  the  streets  and  alleys  and  bridges  of  the  city  and  county 
with  power  to  keep  them  in  repair ;  or  why  there  should  be 
two  boards  in  control  of  city  and  county  property,  or  why 
there  should  be  two  attorneys,  one  to  represent  the  city  and 
one  the  county;  or  why  there  should  be  two  boards  within 
the  territory  to  levy  taxes,  one  to  make  a  levy  for  city  pur- 
poses and  one  for  county  purposes.     The  people  in  their 


Memorial  Window,  Supreme  Court  Room, 
Capitol  Building 


THE  DECISIONS  IN  THE  RUSH  AMENDMENT  CASES        253 

sovereign  capacity  said  there  should  be  one  set  of  officers, 
and  this  economical  scheme  of  government  should  have 
been  upheld  and  not  overthrown. 

*  ****** 

"To  one  who  has  lived  there  practically  all  his  life  the 
assumption  that  the  people  of  Denver  would  use  the  power 
granted  them  by  the  constitution  as  a  mere  plaything  is 
preposterous.  The  question  is,  did  the  people  of  the  state 
grant  power  to  the  people  of  Denver  to  name  their  officers 
for  such  terms  and  at  such  times  as  by  a  charter  adopted 
by  the  people  should  be  determined?  This  is  not  answered 
by  the  assertion  that  if  the  people  have  such  power  they 
might  misuse  it.  I  know  of  no  power  that  we  have  to 
declare  a  constitutional  power  invalid  because  we  deem  it 
unwise.  But  if  the  charter  had  provided  for  ten  county 
judges  and  had  provided  that  they  should  hold  their  terms 
for  life,  with  the  power  of  naming  their  successors — if  the 
constitution  of  the  state  authorized  it — it  should  be  upheld 
because  there  is  nothing  in  the  federal  constitution  or  in 
the  enabling  act  prohibiting  such  a  provision ;  and  the  char- 
ter with  such  a  provision  in  it  is  not  unrepublican,  because 
the  people  of  Denver  have  retained  the  power  of  changing 
the  provisions  of  the  charter,  and  the  people  of  the  state 
have  retained  the  power  of  changing  or  annulling  the 
article. 

"Finally,  the  charter  ratified  by  the  people  was  framed 
by  a  body  of  eminent  citizens  chosen  from  the  various  call- 
ings they  represented  because  of  their  known  ability,  long 
residence  in  the  state,  and  familiarity  with  the  needs  of 
Denver  and  the  desires  of  her  people.  Several  of  the  law- 
yers in  that  body  had  appeared  before  this  court  in  the 
Sours  case  opposing  the  validity  of  article  20.  The  con- 
struction given  to  the  decision  in  that  case  by  these  gentle- 
men and  other  members  of  the  convention  is  shown  by  the 


254  ROBERT    WILBUR    STEELE 

reference  to  the  charter  provisions.  That  they  were  not 
undertaking  to  free  Denver  from  the  constitution  or  attempt- 
ing to  evade  the  performance  of  governmental  duties  within 
the  city  and  county  of  Denver  or  undertaking  to  make  a 
farce  of  the  proceeding  for  the  framing  of  the  charter  is 
evidenced  by  section  156,  which  is  as  follows: 

******* 
"Wherever  the  question  has  been  presented  the  courts 
have  given  effect  to  the  wishes  of  the  people  and  sustained 
the  power  to  establish  the  form  of  government  here  provided 
as  not  being  in  violation  of  the  federal  constitution  and  not 
in  excess  of  the  powers  of  the  people  to  so  provide  in  their 
organic  law.  And  it  is  to  be  regretted  that  this  court  felt 
in  duty  bound  to  undo  the  work  of  the  charter  convention 
and  to  deny  the  people  of  this  city  and  county  the  right  to 
provide  for  a  simple  and  economical  plan  of  government  as 
directed  by  the  constitution." 


CHAPTER  XIV 

SOME   DECISIONS    IN    MINOR   CASES 

Having  been  elected  by  the  people  in  the  general  elec- 
tion of  November,  1900,  Justice  Steele  entered  upon  the 
duties  of  the  Supreme  Court  on  January  8,  1901,  as  suc- 
cessor to  Judge  L.  M.  Goddard.  Justice  Goddard  was  a 
Democrat  and  was  in  regular  line  for  renomination  and 
re-election.  The  Supreme  Court,  however,  had  given  a 
decision  a  short  time  previously  in  the  Morgan  case,  declar- 
ing the  unconstitutionality  of  a  law  passed  by  the  Twelfth 
general  assembly  establishing  an  eight-hour  day  for  under- 
ground mines,  smelters  and  reduction  works.  This  decision 
was  extremely  unpopular  in  many  parts  of  the  state,  and 
this  is  given  as  one  reason  why  the  Democratic  convention 
of  1900,  in  arranging  a  fusion  ticket,  assigned  the  Supreme 
Court  nomination  to  the  Silver  Republicans,  thereby  avoid- 
ing the  dangerous  dilemma  of  endorsing  or  disapproving 
Judge  Goddard's  tacit  approval  of  the  Morgan  decision. 
Judge  Goddard,  it  may  be  noted  further,  was  one  of  the 
two  justices  of  the  Supreme  Court  nominated  by  Governor 
Peabody  on  January  7,  1905. 

During  the  first  term  of  court  in  Justice  Steele's  serv- 
ice, his  name  was  attached  to  four  decisions  which  may 
serve  at  least  to  illustrate  the  varied  nature  of  the  causes 
with  which  he  was  called  to  deal.  The  first  was  a  decision 
in  a  proceeding  for  disbarment  against  an  attorney,  in  which 
the  judge  enforced  the  principle  that  in  such  cases  it  is  not 
sufficient  for  the  accused  to  declare  his  innocence  of  the 
charge  made  against  him,  but  that  he  must  also  explain 
and  set  forth  the  good  faith  of  the  transactions  to  which 
the  charges  relate;  however,  when  the  explanation  is  insuf- 


256  ROBERT    WILBUR    STEELE 

ficient,  without  being  purposely  evasive,  the  attorney  will 
be  given  an  opportunity  to  vindicate  himself.  The  decision 
is  the  first  recorded  for  the  January  term,  1901  (28  Colo., 
page  223).  The  second  was  a  mining  case  in  which  the 
lower  judgment  was  reversed  for  error.  The  third  case  was 
a  complicated  matter  of  water  rights,  pleadings  and  tech- 
nicalities, in  which  the  judgment  of  the  lower  court  was 
affirmed.  The  fourth  was  a  decision  in  a  divorce  case 
involving  some  rather  trenchant  matters  of  morals  as  well 
as  of  law,  in  the  course  of  which  the  new  justice  took  occa- 
sion to  say:  "A  married  man  who,  for  ten  years  of  his 
life,  has  indulged  in  the  habit  of  drinking  and  coming 
home  at  bedtime  in  a  condition  incident  to  the  degree  of 
inebriety  varying  from  the  garrulous  exhilaration  of  one 
only  partially  intoxicated  to  the  sullenness  of  a  sot,  cannot 
expect  his  wife  to  show  that  affectionate  regard  for  him 
which  is  his  due  under  other  circumstances,  and  cannot 
complain  if  she  does  not  engage  in  conversation  which  she 
knows  will  terminate  in  a  quarrel,"  a  statement  full  of  prac- 
tical common  sense  and  reminiscent  of  the  County  Court. 

In  the  next  term  (April,  1901)  Justice  Steele  delivered 
four  opinions,  three  sustaining  and  one  reversing  judgments 
of  the  lower  courts.  In  the  September  term  of  the  same 
year  the  work  was  much  heavier,  his  name  being  affixed  to 
fifteen  cases,  two  at  least  of  which  were  of  more  than  ordi- 
nary importance.  In  eight  of  these  cases  the  judgments  of 
the  lower  courts  were  reversed,  in  two  the  inferior  judg- 
ments were  sustained;  in  two  cases  appeals  were  dismissed-; 
one  case  was  remanded  to  the  Court  of  Appeals ;  in  one  case 
a  perpetual  writ  of  prohibition  was  issued  and  the  lower 
court  was  directed  to  dismiss  the  case;  in  one  case  Justice 
Steele  recorded  a  dissent. 

One  of  these  cases  was  that  of  the  City  of  Leadville 
vs.  Coronado  Mining  Co.  (29  Colo.,  page  23).     This  case, 


SOME    DECISIONS    IN    MINOR   CASES  257 

with  that  next  following,  Leadville  vs.  St.  Louis  Smelting 
&  Refining  Co.,  involved  the  right  of  property  in  ore  taken 
from  beneath  the  streets  and  alleys  of  the  city.  The  deci- 
sion of  the  District  Court  in  both  cases  had  been  against 
the  city  on  account  of  the  lack  of  certain  documentary  evi- 
dence, and  the  Supreme  Court  reversed  this  decision  on 
account  of  error  of  the  lower  court  in  refusing  to  admit 
other  evidence  in  proof  of  the  missing  plat.  The  reversal, 
therefore,  was  determined  upon  a  legal  point,  but  in  his 
decision  Justice  Steele  declared  the  principle  that  in  such 
cases,  while  the  fee  of  the  city  is  qualified,  base,  or  deter- 
minable, by  vacation,  abandonment  or  disuse,  the  absolute 
control  and  dominion  over  the  streets  is  not  impaired,  nor 
did  the  donor  convey  less  than  his  entire  estate  by  the  dedi- 
cation and  conveyance  of  the  streets  and  alleys;  and  the 
interest  which  the  abutting  lot  owners  have  is  a  mere  possi- 
bility that  at  some  future  time  the  streets  will  be  abandoned, 
in  which  event  the  fee  will  pass  to  them  by  operation  of 
law.  The  case  attracted  much  attention  throughout  the 
state,  especially  in  the  mining  counties,  and  the  decision 
was  generally  approved  as  being  a  defense  of  the  rights  of 
the  people.  In  the  concurring  opinions  of  Justices  Camp- 
bell and  Gabbert,  they  said:  "We  do  not  consider  it 
necessary  or  appropriate  at  this  time  to  express  our  views 
as  to  the  legal  propositions  discussed  by  our  associate  fur- 
ther than  they  are  indicated  in  the  reason  given  for  con- 
curring in  the  judgment  of  reversal."  In  later  decisions, 
however  (37  Colo.,  page  235),  Justice  Goddard,  in  deliver- 
ing the  opinion  of  the  court,  disregarded  Justice  Steele's 
earlier  statement  as  obiter  dictum,  and  declared  that  the 
common  law  dedication  in  such  cases  was  merely  for  the 
use  of  the  public,  as  an  easement,  and  did  not  involve  con- 
veyance of  the  fee.  To  the  later  opinions  no  dissent  was 
recorded. 


258  ROBERT  WILBUR  STEELE 

In  the  case  of  Rocky  Mt.  Oil  Co.  vs.  Central  National 
Bank,  upon  the  petition  for  a  rehearing,  are  recorded  for 
the  first  time  the  afterward  familiar  words,  "Mr.  Justice 
Steele  dissents."  No  explanation  of  this  variance  is 
recorded,  but  the  majority  opinion  seems  to  turn  upon  the 
statement:  "It  is  obvious  that  to  carry  out  the  intent  of 
the  legislature  and  at  the  same  time  harmonize  the  attach- 
ment act  with  the  law  governing  the  creation  of  domestic 
corporations,  the  word  'and'  must  be  substituted  for  'or,' 
and  the  subdivision  given  the  construction  stated  in  the 
main  opinion." 

The  case  which  bears  the  headline  The  People  vs. 
District  Court  (29  Colo.,  page  182)  is  a  complicated  matter 
involving  the  District  Court  of  Pueblo  County,  the  state 
board  of  assessors,  and  certain  taxpaying  railroad,  telegraph 
and  telephone  companies,  also  the  validity  of  a  revenue  law 
passed  in  1901.  The  original  opinion  was  delivered  by 
Justice  Steele,  and  its  closing  sentences  afford  a  good  illus- 
tration of  the  fine  courtesy  which  he  extended  toward  those 
with  whom  he  had  official  dealings :  "We  are  forced,  there- 
fore, to  the  conclusion  that  the  judge  of  the  District  Court 
had  not  jurisdiction  of  the  subject-matter,  namely,  the 
issuance  of  an  injunction  to  prohibit  the  state  board  of 
assessors  from  performing  their  duties,  and  that  in  granting 
the  temporary  writ  of  injunction  he  exercised  an  unwar- 
ranted interference  with  a  board  which  is  a  part  of  the 
executive  branch  of  the  government  of  this  state ;  and  such 
act,  being  beyond  his  jurisdiction,  is  null  and  void."  The 
respondent  in  the  case  was  Hon.  N.  Walter  Dixon,  con- 
cerning whom  Justice  Steele  continues  his  decision :  "The 
respondent  says  he  has  no  interest,  direct  or  indirect,  proxi- 
mate or  remote,  in  the  litigation,  nor  has  he  any  desire  of 
preference  as  to  the  outcome  other  than  that  justice  be  done 
according   to   law ;   and   that   in   all   his   acts   he   has   been 


SOME    DECISIONS    IN    MINOR    CASES  259 

impelled  solely  by  a  desire  to  observe  his  oath  of  office  and 
perform  his  duties.  This  we  should  have  known  and 
believed  without  his  verification ;  and,  while  our  views  are 
radically  different  in  this  case,  we  trust  we  shall  have 
always,  as  we  have  now,  great  respect  for  the  District  Court 
of  Pueblo  and  for  the  judges  thereof."  Justice  Gabbert 
filed  a  concurrent  opinion  in  the  main  proceeding. 

In  spite  of  the  injunction  issued  by  the  District  Court, 
the  state  board  of  assessors  went  ahead  with  its  work,  and 
upon  original  proceedings  in  contempt  was  summoned  before 
the  Supreme  Court.  Justice  Steele  delivered  an  opinion 
that,  under  the  circumstances,  the  Supreme  Court  had  no 
power  to  deal  with  the  acts  of  the  state  board.  Justice 
Gabbert  decided  that  certain  members  of  the  board  were 
guilty  of  contempt  and  their  acts  void.  In  the  absence  of 
Chief  Justice  Campbell  the  case  was  thus  suspended.  Upon 
petition  for  rehearing  on  the  question  of  jurisdiction.  Justice 
Gabbert  delivered  a  lengthy  opinion  sustaining  his  views 
as  previously  expressed,  and  Justice  Campbell,  upon  his 
return,  concurred  in  Justice  Gabbert's  opinion,  holding  the 
board  members  and  attorney  general  guilty  of  contempt, 
but  imposing  no  penalty  of  fine  or  imprisonment.  There- 
upon, Justice  Steele  filed  a  dissenting  opinion,  concluding 
as  follows:  "Those  cases  are  not  authority  for  this  judg- 
ment, for  the  reason  that  those  cases  give  the  party  some- 
thing that  he  was  legally  entitled  to,  while  this  judgment 
gives  the  companies  something  they  were  not  legally  entitled 
to,  namely,  freedom  from  assessment  after  the  time  the 
statute  required  assessment  to  be  made.  The  railroads 
having  no  right  to  prevent  the  assessment,  no  advantage 
was  taken  of  them  by  the  making  of  it ;  and  they  were 
entitled  to  no  relief,  legal  or  equitable.  No  authority  was 
cited  by  counsel  supporting  their  right  to  this  judgment,  no 
principle  was  announced  which,  in  my  opinion,  was  appli- 


260  ROBERT  WILBUR  STEELE 

cable  to  this  case ;  and  yet  the  court  has  rendered  a  judgment 
which  brings  confusion  to  the  affairs  of  state,  basing  it,  as 
it  seems  to  me,  upon  no  applicable  principle,  nor  the  author- 
ity of  any  adjudicated  case.  I  do  not  insist  that  appellate 
courts  should  be  controlled  by  the  judgments  and  opinions 
of  other  courts,  nor  that  they  should  surrender  their  own 
well  considered  opinions  to  the  opinions  of  other  persons ; 
but  I  do  insist  that  where  the  effect  of  the  judgment  is  to 
cause  the  community  to  suffer  great  loss,  and  where  it  dis- 
turbs and  disorders  governmental  affairs,  the  court  should 
not  render  such  judgment  except  it  be  based  upon  the 
authority  of  some  adjudicated  case  or  founded  upon  some 
well  recognized  rule  or  principle  of  law," 

Thus,  within  the  first  year  of  his  presence  in  the 
Supreme  Court,  Justice  Steele  came  to  a  sharp  variance 
with  his  eminent  colleagues,  a  variance  that  was  the  mani- 
festation of  a  fundamental  difference  of  legal  temperament, 
of  intellectual  process,  and  of  theory  of  government;  a 
variance  that  was  not  diminished  or  reconciled  by  the  pas- 
sage of  years,  and  that  culminated  in  the  decisions  and  the 
dissenting  opinions  in  the  Moyer,  the  Patterson,  the  Tool, 
the  Sours  and  the  Johnson  cases. 

The  decision  in  the  Ryan  case  (29  Colo.,  p.  410),  to 
which  Justice  Steele  filed  a  dissenting  opinion,  turned  upon 
the  omission  of  the  word  "not"  in  the  instructions  of  the 
judge  of  the  lower  court.  Justice  Steele  said:  "I  cannot 
consent  to  the  judgment  of  reversal.  A  verdict  in  the  sum 
of  $3,000  only  was  rendered  against  the  defendant.  The 
testimony  shows  that  the  plaintiff's  only  means  of  support 
was  the  labor  of  her  son,  who  was  killed,  as  the  evidence 
tended  to  show,  through  the  gross  negligence  of  the  defend- 
ant, and  I  am  unwilling  to  consent  to  a  reversal  upon  what 
seems  to  me  the  merest  technicality  and  Inadvertence.  *  *  * 
We  think  it  is  the  duty  of  the  appellate  courts  not  to  reverse 


SOME    DECISIONS    IN    MINOR    CASES  26l 

a  judgment  upon  a  mere  technical  error  when  it  is  apparent 
from  the  entire  record  that  the  error  was  merely  inadvertent 
and  one  which  the  court  would  have  corrected  instantly  if 
its  attention  had  been  called  to  it  by  counsel.  It  is  the  duty 
of  counsel  not  to  permit  the  court  to  make  an  error  of  this 
kind." 

In  the  case  of  Union  Gold  Mining  Co.  vs.  Crawford 
(29  Colo.,  page  526),  Justice  Steele  delivered  the  opinion 
of  the  court,  affirming  judgment  for  $15,000  against  the 
mining  company  for  the  disabling  injury  of  its  employe, 
and  declaring :  "Guided  by  these  authorities,  we  can  arrive 
at  no  other  conclusion  than  that  the  proximate  and  efficient 
cause  of  the  injury  was  the  negligence  of  the  defendant,  and 
that  it  should  be  held  liable  to  the  plaintiff  for  the  damages 
shown  to  have  been  sustained.  It  is  urged  that  the  verdict 
is  excessive.  Counsel  say  that  fifteen  thousand  dollars 
loaned  at  eight  per  cent  interest  will  yield  the  plaintiff  an 
income  in  excess  of  the  amount  he  has  ever  earned  or  is  able 
to  earn,  without  touching  the  principal.  This  without  the 
slightest  physical  or  mental  exertion.  This  company,  by 
its  culpable  and  wanton  negligence,  has  made  a  physical 
wreck  of  its  employee,  and  it  would  now  enforce  this  cruel 
rule  against  him  by  showing  that  the  amount  of  the  verdict 
at  interest  will  yield  him  more  than  he  could  earn  if  he  were 
in  perfect  physical  condition.  But  if  his  damages  were 
measured  by  this  unjust  rule,  the  verdict  is  not  excessive. 
In  the  first  place,  he  cannot,  'without  making  the  slightest 
mental  or  physical  exertion,'  cause  his  capital  to  yield  eight 
per  cent  interest.  After  the  payment  of  expenses  and  taxes, 
he  will  do  well  if  he  receives  four  per  cent  on  his  money, 
but  little  more  than  half  of  the  amount  he  could  earn  before 
the  injury.  So  that,  eliminating  entirely  the  question  of 
damages  for  the  loss  of  his  leg,  the  damages  for  the  frac- 
ture of  his  skull,  the  amount  of  the  verdict,  if  placed  at 
interest,  will  return  to  him  barely  sufficient  to  live  upon." 


262  ROBERT    WILBUR    STEELE 

In  the  following  case,  City  of  Denver  vs.  Hubbard, 
Justice  Steele,  declaring  the  decision  of  the  court,  reversed 
the  judgment  against  the  city  in  a  damage  suit  because  the 
judge  had  not  instructed  the  jury  that  the  plaintiff  was 
required  to  exercise  increased  care  while  walking  upon  a 
defective  sidewalk  covered  with  ice  and  snow,  when  she  had 
lived  for  months  in  the  building  in  front  of  which  this 
sidewalk  was  and  she  was  familiar  with  its  condition. 

In  the  September  term,  1902,  Justice  Steele  delivered 
the  decision  of  the  court  in  the  important  Clayton  will  case, 
involving  the  foundation  of  the  George  W.  Clayton  College, 
a  home  and  school  for  orphan  boys,  in  the  city  of  Denver. 
The  decision  established  broad  grounds  for  the  maintenance 
of  public  charities  by  individual  bequests  in  Colorado,  and 
sustained  the  manifest  purpose  of  the  testator,  saying : 
"Here,  then,  is  a  public  charity.  Through  it  Mr.  Clayton 
seeks  to  bring  the  minds  and  hearts  of  poor  orphans  under 
the  refining  influence  of  education.  After  making  such 
provision  as  he  thought  proper  for  the  natural  objects  of 
his  bounty,  he  has  selected,  as  deserving  of  his  benevolence, 
the  poor  white  orphan  boys  of  Denver  and  Colorado,  and 
has  devoted  the  residue  of  his  great  fortune  to  the  erection 
and  support  of  a  permanent  college  for  their  free  instruction 
and  maintenance,  that  they  may  become  useful  citizens  and 
honorable  members  of  society.  It  is  an  indulgent,  edifying 
and  worthy  charity.  It  will  lessen  Denver's  burdens  of 
government.  To  thousands  of  poor  orphan  boys  it  will  be 
a  blessing  forever,  and  it  will  be  by  them  forever  blest." 

In  this  term  Justice  Steele's  name  is  recorded  in  connec- 
tion with  sixteen  cases.  In  eight  the  judgments  of  lower 
courts  were  affirmed;  in  four  the  lower  judgments  were 
reversed ;  one  was  remanded ;  one  was  dismissed  on  error ; 
and  in  two  Justice  Steele  filed  dissenting  opinions.  One  of 
these  concerned  a  small  matter  of  an  estray ;  the  other  was 


SOME    DECISIONS    IN    MINOR   CASES  263 

the  case  in  which  the  legislature,  in  reapportioning  the  sena- 
torial districts  of  the  state,  assigned  sixteen  senators  for 
re-election  in  a  year  when  there  were  only  fifteen  vacancies. 
The  majority  decision  (Mills  vs.  Newell,  30  Colo.,  page 
377)  ^^^  t^^^  neither  the  secretary  of  state  nor  the  Supreme 
Court  had  authority  to  interfere  in  the  matter,  but  that  the 
question  could  be  determined  only  by  the  senate  itself. 
From  this  decision  Justice  Steele  dissented  in  vigorous  lan- 
guage, saying :  "I  disagree  with  my  associates  in  the  dis- 
posal of  this  case.  *  '''  *  I  deem  it  to  be  the  duty  of 
the  secretary  of  state,  when  the  legislature  has  indicated 
that  no  election  shall  be  held  in  certain  senatorial  districts 
for  a  certain  year,  to  refuse  to  receive  certificates  of  nomina- 
tion from  such  districts,  and  the  duty  of  this  court  to  uphold 
that  official  in  thus  executing  the  will  of  the  legislature." 

The  case  of  Town  of  Manitou  vs.  International  Trust 
Co.,  with  its  correlated  case  of  Manitou  vs.  Townsend  et  al., 
as  reported  in  30  Colorado,  page  467,  involved  the  principal 
issue  whether  certain  tracts  of  land,  including  some  of  the 
Manitou  mineral  springs,  had  been  dedicated  to  public  use 
as  a  park.  Justice  Steele  delivered  the  opinion  in  which  the 
judgment  of  the  lower  court  was  affirmed  in  favor  of  the 
Manitou  Mineral  Water  Company  and  against  the  town. 
In  discussing  the  alleged  common-law  dedication  for  park 
purposes,  Justice  Steele  said:  "The  plat  of  1874  does  not 
purport  to  convey  this  property  as  a  park.  It  is  claimed, 
however,  that  the  property  in  controversy  appears  on  the 
plat  like  an  oblong  green  leaf  in  the  very  center  of  the 
town,  and  is  completely  segregated  from  other  tracts  of 
ground  by  highways;  that  no  number  or  designation  of  any 
kind  appears  on  the  tract  of  ground ;  that  these  facts  show 
an  intention  to  dedicate  as  well  as  a  dedication,  and  authori- 
ties are  cited  which  hold  that,  when  places  appear  upon  the 
plat  of  a  city  or  town  without  designation,  such  places  are 


264  ROBERT    WILBUR    STEELE 

to  be  regarded  as  for  the  use  of  the  public.  We  cannot 
agree  with  counsel  that  the  plat  itself  is  evidence  of  an 
intention  to  dedicate.  True,  the  shape  of  the  lot  is  some- 
what as  counsel  allege,  but  there  are  other  portions  of  the 
town  shown  to  be  of  irregular  shape.  Upon  the  map  of 
1874  this  portion  is  colored  green ;  so  are  very  many  other 
portions  of  the  plat.  The  lots  are  of  various  shapes  and 
dimensions,  the  blocks  are  not  of  uniform  dimension  or 
shape,  and  from  the  plat  itself,  there  being  no  express 
designation  of  this  place  as  a  park,  it  cannot  be  determined 
that  it  was  intended  as  a  park."  It  might  require  a  personal 
inspection  of  the  scenic  townsite  of  Manitou  to  appreciate 
the  full  force  of  the  argument,  but  its  humor,  delicate  and 
delicious  as  the  fragrance  of  a  mountain  flower,  cannot  fail 
to  impress  even  the  casual  reader  and  to  give  a  pleasure  the 
more  intense  because  of  its  surprising  presence  in  a  volume 
of  Supreme  Court  decisions,  from  which  it  detracts  nothing 
of  dignity  or  force. 

In  this  case,  too,  there  is  an  example  of  another  of  the 
qualities  that  endeared  Justice  Steele  to  his  associates  upon 
the  bench,  to  the  attorneys  of  the  court  and  to  the  people. 
Petition  having  been  made  for  a  rehearing.  Justice  Steele 
denied  the  petition,  saying:  "In  the  opinion  it  was  held 
that  municipal  authorities  cannot  base  their  right  to  public 
places  upon  the  act  of  a  proprietor  of  land  in  selling  lots 
by  reference  to  a  plat  upon  which  such  public  places  are 
designated ;  and  that,  until  there  has  been  an  acceptance, 
the  act  of  the  proprietor  in  selling  lots  amounts  to  a  mere 
offer  to  dedicate  and  can  be  withdrawn.  In  the  petition  for 
rehearing,  it  is  stated  that  this  holding  is  contrary  to  the 
doctrine  announced.  *  *  *  The  position  of  counsel  is, 
in  the  main,  correct,  and  we  withdraw  the  statement." 
Justice  Steele  had  that  quality  of  mind  and  character  which 
makes  it  a  part  of  honesty  to  admit  mistakes,  and  he  did  so 


SOME    DECISIONS    IN    MINOR    CASES  265 

as  frankly  and  as  fearlessly  as  he  maintained  his  opinions 
when  he  believed  them  to  be  right. 

On  January  12,  1904,  Chief  Justice  Campbell's  term 
of  office  expired,  he  succeeded  himself  as  justice  of  the  court 
by  re-election,  and  Justice  Gabbert  became  chief  justice  by 
seniority. 

Reference  has  already  been  made  (chapter  four)  to 
Justice  Steele's  interest  in  the  laws  protecting  animals  from 
inhumane  treatment,  and  further  interest  in  this  subject  is 
shown  in  the  case  of  Bland  vs.  The  People  (32  Colo.,  page 
319),  in  which  the  principal  point  at  issue  was  the  constitu- 
tionality of  a  law  recently  passed  by  the  legislature  which 
prohibited  the  docking  of  horses'  tails.  In  rendering  the 
decision,  Justice  Steele  said :  "The  docking  of  a  horse's 
tail  is  cruelty,  not  only  because  of  the  torture  inflicted  by 
the  operation,  but  because,  by  depriving  the  horse  of  the 
use  of  his  tail,  he  is  deprived  of  the  use  of  a  weapon  sup- 
plied him  by  nature  for  his  protection  from  the  myriad  of 
winged  pests  that  infest  the  land.  *  -'•'  *  The  fore- 
going authorities  establish:  1.  That  it  is  within  the  police 
power  of  the  state  to  prohibit  cruelty  to  animals,  because 
such  prohibition  is  a  protection  to  the  animals  and  tends  to 
conserve  the  public  morals.  2.  That  in  the  exercise  of  the 
power  the  legislature  may  adopt  such  reasonable  means  as 
is  necessary  to  accomplish  the  purposes  of  the  statute. 
3.  That  to  the  legislature  is  confided  a  large  discretion  in 
declaring  the  public  policy,  and  that,  unless  the  legislation 
is  clearly  and  palpably  in  violation  of  the  fundamental  law, 
it  will  be  sustained.  4.  That  all  property  is  held  under  the 
implied  obligation  that  the  owner's  use  of  it  shall  not  be 
injurious  to  the  public.  '■'  *  '•=  We  regard  the  law  as 
just,  wise  and  humane,  and  withal  a  lawful  exercise  of  the 
power  confided  to  the  legislature,  because  it  conserves  the 
public  morals  and  because  it  punishes  the  cruel  and  sense- 


266  ROBERT    WILBUR    STEELE 

less  treatment  by  man  of  his  best  and  most  constant  friend." 
B)'  an  amendment  to  the  constitution  adopted  at  the 
general  election,  November  8,  1904,  the  number  of  judges 
of  the  Supreme  Court  was  increased  to  seVen,  and  the  Court 
of  Appeals  was  abolished,  to  take  effect  on  the  first  Wednes- 
day of  April,  1905.  Judges  Julius  C.  Gunter  and  John  H. 
Maxwell  of  the  Court  of  Appeals  became,  by  the  amend- 
ment, justices  of  the  Supreme  Court,  and  Judges  Luther  M. 
Goddard  and  George  W.  Bailey  were  appointed  by  Gov- 
ernor Peabody  to  be  justices  of  the  Supreme  Court. 

In  the  September  term,  1905,  an  important  case  came 
before  the  court,  involving  the  general  powers  of  city  gov- 
ernments under  article  20  of  the  constitution,  and  more 
particularly  the  power  of  the  city  and  county  of  Denver, 
to  erect  an  auditorium,  to  purchase  a  site  therefor  and  to 
issue  bonds  to  provide  funds  for  such  a  building  and  site. 
The  case  is  recorded  as  Denver  vs.  Hallet  (34  Colo.,  page 
393).  Justice  Steele  delivered  the  opinion  of  the  court, 
saying,  in  part:  "The  judgment  of  the  District  Court  was 
right.  The  power  to  direct  the  issuance  of  bonds  for  the 
erection  of  an  auditorium  was  granted  by  the  people  when 
they  voted  affirmatively  upon  the  question  submitted ;  but 
the  people  granted  the  power  to  issue  bonds  'bearing  interest 
at  the  rate  of  four  per  cent  per  annum,  maturing  in  not  less 
than  fifteen  nor  more  than  thirty  years,  the  principal  to  be 
payable  in  equal  annual  instalments  commencing  the  next 
year  following  the  issuance  of  said  bonds,'  not  bonds  'pay- 
able at  the  option  of  the  city  and  county  fifteen  years  after 
date.'  ■■'•  *  '•'  In  holding,  as  we  do,  that  the  bonds  pro- 
posed are  not  the  bonds  directed  by  the  people  to  be  issued, 
we  have  determined  the  case,  and  might  well  refuse  to 
decide  the  other  questions  involved.  But  inasmuch  as  the 
power  of  the  city  to  erect  a  public  auditorium  is  challenged 
and  the  question  is  of  public  moment  and  concern,  and  as 


SOME    DECISIONS    IN    MINOR   CASES  267 

much  time  and  expense  will  be  saved  by  a  determination  of 
this,  the  main  question,  we  are  constrained  by  the  force  of 
the  public  interests  to  give  our  opinion  upon  this  subject. 
■•fi  *  *  y/^  agree  with  counsel  that  no  power  to  build  an 
auditorium  is  expressly  granted  by  the  twentieth  article ; 
that  such  power  is  not  incident  to  the  powers  expressly  con- 
ferred, nor  can  it  be  necessarily  or  fairly  implied  therefrom ; 
and  that  an  auditorium  is  not  indispensable  to  the  objects 
and  purposes  of  the  municipality  as  declared  in  the  twen- 
tieth article.  But  we  do  not  agree  with  him  that  the  stinted 
grant  of  power  contained  in  section  1  and  other  parts  of  the 
article  is  the  only  power  possessed  by  Denver.  It  seems 
very  clear  that  the  statement  contained  in  the  hrst  section 
was  not  intended  to  be  an  enumeration  of  powers  conferred, 
but  simply  the  expression  of  a  few  of  the  more  prominent 
powers  which  municipal  corporations  are  frequently  granted. 
The  purpose  of  the  twentieth  article  was  to  grant  home  rule 
to  Denver  and  the  other  municipalities  of  the  state,  and  it 
was  intended  to  enlarge  the  powers  beyond  those  usually 
granted  by  the  legislature ;  and  so  it  was  declared  in  the 
article  that,  until  the  adoption  of  a  new  charter  by  the 
people,  the  charter  as  it  then  existed  should  be  the  charter 
of  the  municipality,  and,  further,  that  the  people  of  Denver 
shall  always  have  the  exclusive  power  of  making,  altering, 
revising  or  amending  their  charter;  and,  further,  that  the 
charter,  when  adopted  by  the  people,  should  be  the  organic 
law  of  the  municipality  and  should  supersede  all  other 
charters.  It  was  intended  to  confer  not  only  the  powers 
specially  mentioned,  but  to  bestow  upon  the  people  of 
Denver  every  power  possessed  by  the  legislature  in  the 
making  of  a  charter  for  Denver.  *  *  *  The  general 
purpose  of  all  municipal  corporations  is  to  promote  the 
general  welfare  and  happiness  of  the  people ;  and  provisions 
are  generally  made  for  the  suppression  of  vice  and  immoral- 


268  ROBERT  WILBUR  STEELE 

ity,  and  the  advancement  of  public  health  and  good  order, 
and  the  promotion  of  trade  and  industry.  For  many  years 
Denver  has  had  power  under  her  charter  to  appropriate 
funds  for  the  entertainment  of  visitors  and  for  the  expenses 
of  funerals,  power  to  take  an  enumeration  of  the  inhabit- 
ants, to  foster  and  encourage  manufactories,  for  laying  out 
and  ornamenting  grounds  for  a  cemetery  and  for  the  sale 
of  lots  therein,  and  to  support  or  own  a  public  library.  Not 
one  of  these  powers  can  be  regarded  as  indispensable  to  a 
municipality.  Municipalities  are  permitted  to  exercise  them 
because  they  tend  to  the  advancement,  the  culture,  the  con- 
venience and  the  general  welfare  of  the  public.  It  is  not  a 
valid  objection  to  the  exercise  of  such  powers  that  one  class 
of  the  inhabitants  would  receive  more  benefit  than  another. 
The  test  is  whether  the  power,  if  exercised,  will  promote 
the  general  objects  and  purposes  of  the  municipality,  and 
of  this  the  legislature  is  the  judge  in  the  first  instance;  and, 
unless  it  clearly  appears  that  some  constitutional  provision 
has  been  infringed,  the  law  must  be  upheld."  Chief  Justice 
Gabbert,  Justice  Campbell  and  Justice  Maxwell  dissented 
from  that  part  of  the  opinion  which  held  that  the  city  and 
county  of  Denver  have  the  power  to  direct  the  erection  of  a 
public  auditorium  at  public  expense,  it  being  their  opinion 
that  the  purpose  mentioned  was  not  a  "corporate  purpose." 
Justice  Steele  always  maintained  a  lively  and,  so  far 
as  was  consistent  with  his  position,  an  active  interest  in  the 
welfare  and  the  development  of  Denver.  No  decision  of 
his  career  gave  him  more  pleasure  than  that  in  the  Audi- 
torium case,  and  he  very  properly  felt  that  in  maintaining 
the  doctrine  of  a  full  grant  of  power  in  article  20  he  had 
not  only  confirmed  the  right  of  the  city  to  its  magnificent 
convention  hall,  but  he  had  also  opened  the  way  for  other 
benefits  of  a  similar  nature  to  all  the  cities  of  the  state. 
When  the  corner  stone  of  the  great  building  was  prepared, 


SOME    DECISIONS    IN    MINOR   CASES  269 

Justice  Steele  was  asked  to  select  a  suitable  inscription,  and 
he  chose  for  this  purpose  the  following  words :  "Let  all  the 
nations  be  gathered  together — let  the  people  be  assembled," 
which  remain  as  the  declaration  of  its  primary  purpose. 

On  January,  1907,  Justice  Steele  became  chief  justice 
by  right  of  seniority,  Justice  Gabbert's  term  of  office 
expiring.  Justice  Gabbert  was  continued  as  a  member  of 
the  court  by  re-election,  and  Justice  Charles  F.  Caswell  was 
elected  as  the  successor  of  Justice  Gunter. 

Justice  Caswell  died  November  21,  1907,  and  Hon. 
Joseph  C.  Helm  was  appointed  as  justice  in  his  place.  On 
January  11,  1909,  the  terms  of  Justices  Helm,  Goddard, 
Maxwell  and  George  W.  Bailey  expired,  and  they  were 
succeeded  by  Justices  Morton  S.  Bailey,  William  A.  Hill, 
George  W.  Musser  and  S.  Harrison  White,  who  had  been 
elected  in  the  general  election  of  the  preceding  November. 

The  cases  from  which  quotations  have  been  made  are 
considered  as  exemplary  or  characteristic,  and  no  attempt 
has  been  made  to  review  in  detail  the  great  volume  of  work 
accomplished  by  Justice  Steele  during  his  term  of  service 
in  the  Supreme  Court.  The  great  majority  of  cases  in  which 
he  delivered  the  opinion  of  the  court  or  recorded  his  con- 
currence or  dissent  were  matters  of  the  review  of  legal 
procedure  in  the  lower  courts,  and,  outside  of  the  evidence 
they  give  of  his  painstaking  attention  to  the  onerous  and  in 
many  cases  tedious  duties  laid  upon  him,  they  afford  little 
of  general  interest.  In  many  cases,  however,  matters  of 
public  interest  were  discussed,  the  rights  of  the  people  were 
m.aintained,  and  the  authority  of  the  court  was  employed  in 
the  interest  of  justice  outside  of  the  mere  routine  of  revision 
and  supervision  of  the  lower  courts. 

In  the  case  of  Hartman  vs.  Bailey  (36  Colo.,  page 
146),  the  point  at  issue  was  the  right  of  fishing  in  streams 
stocked  at  the  public  expense,  as  dissociated  from  the  ques- 


270  ROBERT  WILBUR  STEELE 

tion  of  trespass,  and  in  this  case  Justice  Steele  concurred  in 
the  dissenting  opinion  of  Justice  Bailey,  which  strongly 
upheld  the  privileges  of  the  fishermen.  The  case  of  People 
vs.  District  Court  (37  Colo.,  464)  was  the  one  in  which 
the  Supreme  Court  refused  to  recognize  a  rival  authority 
in  the  issuing  of  "high  prerogative  writs,"  and  granted  a 
writ  of  prohibition  against  such  exercise  of  power  by  Judge 
Johnson  of  the  District  Court  of  Denver.  Justice  Steele's 
dissent  in  this  case  was  made  orally,  and  was  notable  for 
the  fact  that  he  stated  that  the  majority  opinion  was  not 
submitted  to  him,  and  to  Justice  Gunter,  who  concurred 
in  the  dissent,  until  the  preceding  Friday,  so  that  they  had 
had  no  time  to  prepare  an  extended  dissent. 

The  case  of  C.  S.  &  I.  Ry.  Co.  vs.  Nichols  (41  Colo., 
page  272)  involved,  in  effect,  the  reversal  of  a  decision  of 
one  of  the  earliest  Colorado  cases,  which  had  been  widely 
condemned  not  only  as  unjust  but  as  inhumane  by  legal 
authorities,  but  which  had  still  remained  as  the  Colorado 
authority,  although  it  had  been  somewhat  modified  by  a 
decision  given  just  previous  to  Justice  Steele's  arrival  in 
the  court.  The  decision  in  this  case  has  been  commented 
upon  as  an  instance  of  the  manner  in  which  Justice  Steele 
was  able  to  maintain  a  firm  opinion  and  stand,  while 
observing  the  highest  measure  of  courtesy  and  consideration 
for  those  with  whom  he  disagreed.  Among  a  multitude  of 
cases  involving  something  more  than  mere  matters  of  rou- 
tine may  be  mentioned  the  following:  Denver  vs.  Kennedy 
(33  Colo.,  93)  ;  Pueblo  Co.  vs.  Strait  (36  Colo.,  138)  ;  City 
La  Junta  vs.  Heath  (38  Colo.,  372)  ;  Lehman  vs.  Pettin- 
gell  (39  Colo.,  258)  ;  People  vs.  Rice  (40  Colo.,  508)  ; 
Saleen  vs.  People  (41  Colo.,  318)  ;  Colo.  Springs  vs.  Colo. 
City  (42  Colo.,  75)  ;  M.  &  P.  P.  Ry.  vs.  Harris  (45  Colo., 
186),  and  Roberts  vs.  C.  S.  &  I.  Co.  (45  Colo.,  189).  The 
Harris  case  was  especially  interesting  because  it  involved  a 


SOME    DECISIONS    IN    MINOR    CASES  27I 

recognition  of  the  value  of  growing  trees  upon  the  mountain 
side  computed  upon  another  basis  than  their  salable  worth 
as  lumber. 

It  must  not  be  supposed  from  anything  that  has  been 
hitherto  said  or  omitted,  or  from  the  emphasis  given  to 
Justice  Steele's  dissenting  opinions,  that  he  was  an  inhar- 
monious member  of  the  court.  The  reverse  of  that  condi- 
tion was  true.  Justice  Steele  was  a  diligent  student  and  a 
hard  worker.  He  assumed  a  full  share  of  the  work  of  the 
court  and  never  shirked  or  slighted  the  duty  that  was  laid 
upon  him.  Except  where  matters  of  principle  were  con- 
cerned in  which  his  opinions  were  at  variance  with  those 
of  his  colleagues,  he  was  a  delightful  and  harmonious 
co-worker.  He  was  free  from  eccentricities.  His  dissents 
represented  careful  judgments  upon  important  points,  and 
they  were  never  merely  disputatious  or  punctilious.  He 
had  a  high  sense  of  the  dignity  of  the  court,  and  the  respect 
which  he  maintained  at  all  times  in  his  own  words  and 
conduct  he  extended  to  his  colleagues,  giving  them  the 
fullest  possible  measure  of  credit  for  sincerity  of  motive 
and  honesty  of  purpose.  It  was  this  attitude,  together  with 
the  sweetness  and  gentleness  of  his  nature,  which  gave  the 
explanation  of  the  extraordinary  fact  that  amid  all  the 
storm  of  bitter  controversies,  which  drove  men  to  acts  and 
accusations  of  stormiest  passion.  Justice  Steele  made  no 
enemies.  Without  fear  and  without  reproach,  "with  malice 
toward  none ;  with  charity  toward  all ;  with  firmness  in  the 
right  as  God  gave"  him  to  see  the  right ;  he  walked  openly 
in  the  sight  of  men.  His  host  of  friends  watched  with  ever- 
increasing  admiration  the  achievements  of  his  expanding 
career;  his  opponents  gave  an  unstinted  measure  of  respect 
and  personal  liking;  and  the  people,  whose  cause  he  never 
failed  to  maintain  in  reasonableness  and  justice,  accorded 
to  him  the  fullest  measure  of  confidence,  affection  and 
esteem. 


CHAPTER  XV 

THE  COURT  OF  LAST  RESORT 

Robert  Steele  came  to  the  office  of  district  attorney 
by  the  popular  will  and  not  by  his  own  seeking.  Before 
his  term  as  district  attorney  had  expired,  he  was  chosen  by 
the  commissioners  to  the  position  of  county  judge.  This 
choice  was  subsequently  ratified  by  the  people  in  a  general 
election,  and  before  their  commission  had  lapsed  he  was 
again  called  to  a  higher  place,  the  highest  in  the  judicial 
system  of  the  state.  The  original  term  was  for  nine  years, 
but  the  constitutional  amendment  adopted  in  1904  extended 
this  term  for  one  year,  or  until  January,  1911.  Once  again, 
before  his  term  of  office  had  expired,  he  was  transferred, 
by  a  higher  than  earthly  power,  to  whatever  of  activity  a:nd 
opportunity  the  future  holds  for  that  man  whose  mortal 
course  seems  guided  and  controlled  by  an  eternal  purpose 
and  whose  life  is  spent  in  harmony  with  an  eternal  law. 

Had  Robert  Steele  continued  to  walk  the  paths  of  an 
earthjy  career  he  would  have  been  assuredly  re-elected  to 
the  Supreme  Court.  The  nomination  had  already  been 
given  to  him  by  acclamation  by  his  party,  without  any 
solicitation  or  effort  on  his  part.  The  independent  vote  of 
the  state,  which  had  grown  rapidly  to  be  more  and  more 
the  controlling  factor  in  general  elections,  was  very  largely 
in  his  favor.  Even  those  voters  who  would  have  preferred 
another  candidate  for  partisan  or  other  reasons  had  no 
enmity  toward  Judge  Steele.  His  re-election  was  generally 
conceded. 

On  the  night  of  September  21,  1910,  after  a  busy  day, 
at  his  home  in  Denver,  he  was  stricken  with  an  attack  of 
an   apoplectic   nature,   and   three   weeks   later,   October    12, 


THE   COURT   OF    LAST   RESORT  273 

death  came  to  him,  after  an  illness  through  which  the  city 
and  the  state  watched  and  hoped  for  his  recovery.  Even 
in  his  last  hours  his  thoughts  were  with  the  people,  for  it  is 
told  that  in  one  of  the  few  periods  of  consciousness,  receiv- 
ing a  drink  of  water  from  an  attendant,  he  expressed  the 
wish  that  there  might  be  more  cooling  fountains  along  the 
highways,  for  the  benefit  of  all  those  who  are  thirsty. 

Not  in  the  fullness  of  years  when  mental  and  physical 
powers  had  declined,  but  in  the  prime  of  wisdom  and 
strength  the  great  change  came  to  him,  and  an  Infinite 
Wisdom  knows  where  and  why  that  intelligence  and  activity 
were  transferred  to  another  sphere.  Yet  the  work  that  he 
did  was  well  done,  and  though  he  fought,  in  the  minority, 
a  losing  fight  for  the  great  cause  he  cherished,  he  went  from 
the  field  victorious,  and  through  his  efforts  largely  his  cause 
was  once  more  triumphant  and  his  fight  was  won.  That 
cause  was  the  cause  of  human  rights  and  popular  self- 
government,  the  cause  for  which  Liberty's  exiles  crossed  the 
seas,  for  which  Washington  fought,  for  which  the  immortal 
company  of  the  fathers  of  the  republic,  Franklin  and  Adams 
and  Jefferson  and  many  more,  offered  their  all  upon  their 
country's  altar;  the  cause  for  which  Liberty  and  Patriotism 
still  keep  open  the  rolls  of  glorious  fame. 

For  the  fundamental  principle  of  American  free  gov- 
ernment is  this :  that  in  the  long  run  better  average  results 
can  be  obtained  by  the  free  rule  of  the  majority  than  by 
any  other  system  that  ever  has  been  or  can  be  devised  by 
the  wit  of  man.  Every  departure  from  the  American  prin- 
ciple tends  toward  minority  rule — autocracy,  aristocracy, 
theocracy,  or,  basest  of  all,  government  by  a  political 
machine,  or  any  one  of  the  innumerable  titles  beneath  which 
it  is  sought  to  disguise  opposition,  in  theory  or  in  practice, 
to  that  rule  of  the  people,  by  the  people  and  for  the  people, 
to  which  Lincoln  and  many  heroic  patriots  of  a  later  day 


274  ROBERT  WILBUR  STEELE 

have  devoted  their  lives.  Not  that  the  majority  of  the 
people  is  always  wise,  or  always  right,  or  that  the  majority 
does  not  make  mistakes;  but  that  the  people  are,  and  in  the 
nature  of  things  must  be,  the  source  of  sovereign  power  and 
the  court  of  last  resort  by  whom  all  things  and  all  men  are 
to  be  judged. 

Robert  Steele  was  one  of  those  clear-sighted  statesmen 
who  have  seen  in  the  declaration  that  "all  men  are  created 
free  and  equal,"  not  the  statement  of  a  fact  in  biology  or 
social  science,  but  a  fundamental  principle  of  political 
philosophy,  a  living  truth  by  which  free  government  is 
established.  He  saw  clearly  the  difference  between  that 
party  organization  which  is  maintained  for  the  furtherance 
of  political  principles  and  governmental  policies  through 
the  people's  will,  and  that  partisan  machine  which  exists 
for  the  purpose  of  defeating  and  obstructing  the  will  of  the 
people  and  of  controlling  government  against  the  public 
interest  and  for  the  benefit  of  ambitious  or  mercenary  selfish- 
ness. 

It  has  been  said,  and  many  times  repeated  : 

"Truth  crushed  to  earth  will  rise  again, 

The  eternal  years  of  God  are  hers; 
But  Error,  wounded,  writhes  with  pain 
And  dies  among  his  worshippers," 

but  it  would  be  hard  to  find  at  any  other  time  or  place  an 
instance  where  victory  came  so  soon  after  an  apparently 
losing  fight  as  in  the  case  of  Robert  Steele.  Even  while  the 
decisions  from  which  he  dissented  were  being  written  into 
the  recorded  law  of  the  state,  the  people  were  gathering  to 
the  support  of  the  standards  he  had  raised.  His  clear, 
authoritative  and  unanswerable  presentation  of  the  primi- 
tive principles  of  American  free  government  was  the  great 
rallying  cry  that  brought  the  invincible  hosts  of  democracy 
to  his  aid  and  swept  to  oblivion  the  structure  that  had  been 


THE   COURT   OF    LAST    RESORT  275 

raised  against  his  protest.  Within  two  years  from  the  tune 
when  his  presence  in  the  Supreme  Court  ceased,  the  rights 
he  defended  and  the  principles  he  maintained  were  re-estab- 
lished and  confirmed,  even  though  in  some  of  these  cases 
the  majority  decision  yet  stands  as  the  highest  judicial 
authority. 

When  Justice  Gabbert  declared  in  the  Moyer  case,  in 
effect,  that  the  writ  of  habeas  corpus  was  a  delusion  and  a 
fraud ;  that,  though  the  chief  of  the  military  power  might 
have  no  authority  to  suspend  the  writ,  he  had  the  power, 
incident  to  his  authorization  to  suppress  insurrection,  to  dis- 
regard the  writ ;  and  that  the  military  power  in  the  field  is 
merely  a  manifestation  of  the  supreme  civil  authority,  thus 
satisfying  the  constitutional  requirement  of  the  subordina- 
tion of  the  military  to  the  civil  power — is  it  any  wonder  that 
the  people  should  feel  the  need  of  new  defenses  for  their 
liberties,  new  instrumentalities  by  which  their  sovereign 
control  of  public  power  should  be  made  effective*? 

When  keen-witted  corporation  attorneys,  fighting  to 
maintain  the  hold  upon  government  that  had  been  gained 
by  the  interests  they  served,  had  won  from  the  Supreme 
Court  its  approval  of  the  high  prerogative  writs  of  the 
king's  bench,  which  were  the  justly  hated  instruments  of 
English  tyranny,  is  it  any  wonder  that  the  people  them- 
selves should  have  hurled  back  their  answer  in  a  declaration 
of  their  attributes  of  sovereignty,  the  High  Prerogative 
Writs  of  the  People :  the  Initiative,  the  Referendum  and 
the  Recall*? 

Justice  Gunter,  with  his  colleagues  approving,  except 
Justice  Steele,  punished  Senator  Patterson  for  constructive 
contempt  of  court,  although  Senator  Patterson  alleged,  not 
in  newspaper  publication,  but  in  open  court  and  in  written 
plea,  the  existence  of  a  huge  conspiracy,  involving  the  legis- 
lature, the  executive  and  the  Supreme  Court  itself,  to  usurp 


276  ROBERT  WILBUR  STEELE 

and  to  control  the  powers  of  government  for  corporate 
advantage,  and  he  offered  thereof  to  make  his  proof.  And 
the  very  judges  whom  he  accused  as  instruments  of  that 
conspiracy  refused  his  proffer  of  evidence  and  joined  in 
inflicting  a  penalty  for  the  constructive  contempt  of  news- 
paper publication.  Is  it  any  wonder  that  the  people  of  the 
state  at  the  earliest  possible  opportunity  wrote  into  constitu- 
tional law  not  merely  the  recall  of  judges,  but  the  recall  of 
judicial  decisions  as  well? 

Reference  has  already  been  made  to  the  manner  in 
which  the  judges  who  came  from  the  people  in  the  elections 
of  1908  and  1910  reversed  the  decision  in  the  Johnson  case 
and  restored  the  principles  that  Justice  Steele  had  laid  down 
in  the  Sours  case.  That  later  decision,  delivered  by  Justice 
M.  S.  Bailey,  may  be  found  reported  in  the  case  of  The 
People  ex  rel.  Attorney  General  vs.  Cassiday  et  al.  (50 
Colo.,  page  503)5  and  it  is  summarized  in  its  essential  points 
as  follows : 

1.  The  people  of  the  state  have  plenary  power  to 
provide,  by  constitutional  amendment,  such  methods  of  gov- 
ernment for  the  state,  or  for  any  portion  of  the  state,  as 
may  please  them  so  long  as  there  is  no  violation  of  the 
federal  compact.  To  confer  upon  the  people  of  a  particular 
community  authority  to  designate  the  agencies  by  which 
governmental  duties  therein  shall  be  discharged  is  not 
obnoxious  to  any  provision  of  the  enabling  act  or  of  the 
federal  constitution. 

2.  Where  any  provision  of  the  constitution  is  framed 
in  doubtful  or  uncertain  language  it  is  the  province  of  the 
courts  to  construe  it ;  but  it  is  not  within  the  province  of  the 
court  to  substitute  othei  words  for  those  used  In  the  consti- 
tution, or  place  any  forced  construction  thereon,  or  eliminate 
words  found  therein. 


THE   COURT   OF    LAST   RESORT  277 

3.  An  amendment  of  the  constitution  is  to  be  consid- 
ered, treated  and  construed  as  if  it  had  been  written  therein 
in  the  first  instance. 

4.  Article  20  is,  in  all  its  provisions  and  for  all  pur- 
poses, a  part  of  the  constitution  according  to  its  clear  import. 
Neither  section  2  nor  any  other  provision  of  that  article  has 
the  effect,  or  assumes  to  set  aside  governmental  duties  and 
functions  as  to  state  and  county  affairs,  within  the  territory 
named,  and  its  whole  effect  is  to  provide  that  the  people  of 
the  city  and  county  of  Denver  shall,  through  their  charter, 
designate  the  agencies  which  are  to  discharge  those  duties 
and  functions  which  elsewhere  in  the  state  pertain  to  county 
officers,  all  of  which  functions  and  duties  are  preserved 
intact.  This  does  not  create  a  government  unrepublican  in 
form  or  involve  any  inhibition  of  the  federal  constitution, 
and  was  clearly  one  of  the  powers  reserved  to  the  people  of 
the  state  upon  entering  into  the  federal  compact.  The  doc- 
trine of  the  majority  opinion  in  The  People  ex  rel.  vs.  John- 
son (34  Colo.,  143)  rejected  and  that  case  overruled. 

5.  Since  the  adoption  of  this  article  and  the  formation 
of  the  municipal  corporation  of  the  city  and  county  of 
Denver,  there  has  never  been  within  the  limits  thereof  a 
county  office  or  officer,  as  such,  except  as  this  proposition 
may  have  been  affected  by  the  decision  of  this  court  in 
Johnson's  case. 

Justice  Bailey  delivered  the  decision  of  the  court  en 
banc.  Justices  Campbell  and  Gabbert  filing  dissenting  opin- 
ions and  Justice  Hill  presenting  a  special  concurring 
opinion,  in  which  he  said :  "I  am  perfectly  content  to  rest 
my  ultimate  conclusions  upon  the  dissenting  opinions  by 
the  late  Chief  Justice  Steele  and  Mr.  Justice  Gunter  in  the 
former  cases,  and  the  majority  opinion  in  this  case." 

The  decision  in  the  Tool  case,  from  which  Justice 
Steele  dissented  orally,  because  "it  is  unwarranted,  without 


278  ROBERT  WILBUR  STEELE 

precedent  and  directly  contrary  to  law,"  quickly  passed  into 
the  domain  of  legal  futilities.  The  Australian  ballot  law 
of  1889  was  the  first  blow  against  machine  politics,  but  it 
remained  for  the  headless  ballot  law,  adopted  by  the  people 
in  1912,  to  destroy  the  main  source  of  fraud  and  corruption 
in  general  elections.  The  direct  primary  law  of  1911,  sound 
in  principle  and  wofully  defective  in  detail,  relaxed  and 
almost  released  the  control  of  party  nominations  by  the 
machines,  and  went  far  toward  making  the  party  platform  a 
declaration  of  genuine  principles  and  sincere  purposes  of 
administration. 

Out  of  the  decision  in  the  Sours  case,  as  restored  by 
the  decision  in  the  Cassiday  case,  has  grown  the  structure 
of  free  self-government  for  cities,  by  which  the  cities  them- 
selves are  delivered  from  corruption,  misgovernment  and 
usurpation,  from  Tammany  and  "Big  Mitt,"  on  one  side, 
from  franchise  grabbers  and  boodlers,  vote  buyers  and  vote 
sellers,  bribe  givers  and  bribe  takers,  on  the  other ;  and  by 
which  the  state  has  been  saved  from  the  contagion  and  the 
corruption  of  the  machine  politics  of  the  cities. 

Thus  the  great  principles  for  which  Justice  Steele  con- 
tended— the  right  of  personal  liberty,  the  right  of  free 
speech  and  a  free  press,  the  right  of  free  elections  unim- 
paired by  the  interferences  of  political  machines,  the  right 
of  the  people  to  free  self-government  according  to  their  own 
will,  and  to  alter,  amend  and  abolish  their  constitution 
in  order  to  promote  their  welfare  and  happiness — were 
reaffirmed  and  re-established  by  the  sovereign  power  of  the 
people  themselves. 

It  was  in  the  Sours  case  that  Justice  Steele  wrote  into 
the  decision  what  was  not  merely  a  statement  of  funda- 
mental law,  but  was  also  his  appeal  to  the  court  of  last 
resort,  to  the  will  of  the  people;  for  he  based  his  decision 


THE   COURT   OF    LAST   RESORT  279 

in  that  case  upon  the  fundamental  provision  of  the  bill  of 
rights:  "That  all  political  power  is  vested  in  and  derived 
from  the  people ;  that  all  government,  of  right,  originates 
from  the  people,  is  founded  upon  their  will  only  and  is 
instituted  solely  for  the  good  of  the  whole ;  and  that  the 
people  of  the  state  have  the  sole  and  exclusive  right  of 
governing  themselves,  as  a  free,  sovereign  and  independent 
state ;  and  to  alter  and  abolish  their  constitution  and  form 
of  government  whenever  they  may  deem  it  necessary  to  their 
safety  and  happiness,  provided  such  change  be  not  repug- 
nant to  the  constitution  of  the  United  States." 

To  Robert  Steele  those  words  were  the  embodiment  of 
living  truth,  through  which  men  should  be  free.  They 
were  not  an  empty  form,  a  trick  to  deceive  the  multitude ; 
they  were  the  voice  of  the  spirit  of  liberty,  the  vital  essence 
of  American  freedom.  By  virtue  of  the  new  and  extraor- 
dinary instruments  of  democracy,  the  basic  principles  of  the 
Magna  Charta,  of  the  Declaration  of  Independence,  of  the 
constitutions  of  the  state  and  the  nation  have  been  strength- 
ened, delivered  and  restored.  Old  evils  have  been  destroyed ; 
imminent  dangers  have  been  avoided;  flagrant  abuses  have 
been  corrected ;  usurpers  have  been  ousted ;  rights  have  been 
regained.  With  those  weapons  of  democracy  firmly  in  hand, 
the  people's  fight  seems  won,  but  the  eternal  warfare  con- 
tinues. Out  of  the  depths  of  ignorance  and  depravity  the 
forces  of  anarchy  still  rise  for  the  destruction  of  law  and 
order,  for  waste  and  for  pillage.  From  selfishness,  from 
ambition  and  from  greed  is  ever  renewed  the  impulse  to 
debase  the  charter  of  the  people's  rights  to  a  counterfeit  and 
a  sham,  and  under  the  guise  of  a  free  constitution  to  make 
of  government  something  else  than  the  rule  of  the  people. 
The  myriad  hosts  of  those  who  desire,  for  whatever  reason, 
honest  or  dishonest,  some  other  government  than  the  Ameri- 


280  ROBERT    WILBUR    STEELE 

can  government,  of  their  generation  there  is  no  end;  yet 
hope  reigns  supreme, 

"For  Freedom's  battle,  oft  begun, 
Bequeathed  from  bleeding  sire  to  son. 
Though  baffled  oft,  is  ever  won." 

Whenever  the  skies  are  most  serene,  and  the  people 
most  happy  and  secure,  as  well  as  in  those  darker  moments 
when  the  storm  clouds  gather,  as  gather  they  must  again, 
when  the  tempests  of  passion  and  of  regeneration  shake 
the  foundations  of  our  civic  temples,  the  people  of 
Colorado,  and  many  beyond  her  borders,  may  gather  inspira- 
tion, courage  and  faith  unconquerable  from  the  life,  the 
labors  and  the  triumph  of  Robert  Wilbur  Steele,  Defender 
of  Liberty. 


CHAPTER  XVI 

IN  THE  MEASURE  OF  APPRECIATION 

Robert  Steele  was  not  a  man  who  loved  to  walk  the 
upper  trails  of  life  unaccompanied.  A  genial  companion, 
a  true  friend  and  lover  of  the  people,  the  work  of  the 
Supreme  Court  involved  one  element  that  was  alien  to  his 
nature  and  distasteful  to  his  desires.  He  was  extremely 
scrupulous  in  maintaining  the  dignity  of  his  position,  and 
he  defended  the  strict  honor  of  the  impartial  judge  even 
at  the  sacrifice  of  some  friendships  that  under  other  condi- 
tions would  have  been  most  delightful  to  him.  He  felt 
that  he  had  no  right  to  be  a  political  partisan  in  anything 
that  involved  his  official  authority,  and  that  he  had  no 
right  to  risk  any  personal  partiality  or  favoritism  in  matters 
that  might  come  before  him  for  his  decision.  Giving  full 
recognition  to  the  importance  of  the  place  he  occupied,  he 
sometimes  wished  that  he  might  be  in  a  position  where  he 
would  have  a  more  intimate  relation  to  the  affairs  of  the 
common  people,  sharing  their  joys  and  sorrows,  and  helping 
them  as  he  was  used  to  do  when  he  was  judge  of  the  County 
Court. 

This  feeling  of  isolation  and  of  remoteness  was  inten- 
sified by  the  fact  that  for  a  number  of  years  he  found  him- 
self in  opposition  to  his  judicial  associates  and  the  object 
of  disapproval  from  many  of  the  most  prominent  men  of 
his  time  and  state.  It  is  one  thing  to  maintain  firmly  what 
conscience  declares  to  be  right ;  and  it  is  a  different  thing 
to  be  wholly  indifferent  to  the  opinions  of  those  by  whom 
one  is  surrounded.  Robert  Steele  was  intensely  conscien- 
tious, but  he  was  never  apathetic.  The  dignity  of  his 
position  and  the  matters  of  constitutional  law  that  occupied 


282  ROBERT  WILBUR  STEELE 

his  daily  attention  separated  him  from  close  contact  with 
the  people,  but  he  never  lost  his  interest  in  them ;  and,  what 
is  more  remarkable,  they  never  lost  their  confidence  in  the 
people's  judge,  but  rather  increased  their  affection  and 
esteem  through  the  passing  years. 

Robert  Steele's  work  speaks  for  itself,  and  the  imper- 
ishable proof  of  his  ability  and  his  patriotism  is  found 
forever  in  those  opinions  which  only  need  interpretation  to 
the  extent  of  reviewing  the  conditions  of  their  times  and 
of  narrating  their  results.  But  it  is  always  interesting  to 
see  what  the  people  of  his  own  time  think  of  the  man  who 
is  leading  their  thought  and  action,  and  how  far  he  receives 
due  credit  for  his  work  from  those  for  whom,  primarily, 
that  work  is  performed.  Robert  Steele  was  singularly 
fortunate  in  this  respect,  and  it  is  easy  to  gather  from 
letters,  from  public  statements  and  from  newspapers  of  the 
time,  the  evidence  of  what  people  thought  of  him  and  of 
his  work. 

The  political  party  from  which  he  received  his  highest 
official  honors,  and  to  which  he  gave  a  full  measure  of 
loyalty  and  confidence,  freely  acknowledged  his  character 
and  his  standing  among  the  people.  The  Democratic  state 
convention  of  1910  was  held  in  September  in  the  Denver 
auditorium,  which  Judge  Steele  had  been  largely  instru- 
mental in  securing  for  the  people  of  the  city.  After  he  was 
nominated  unanimously,  the  cheers  of  the  great  multitude 
called  him  to  the  front  of  the  stage  to  accept  their  proof  of 
commendation.  As  he  came  forward  a  hush  fell  upon  the 
vast  assembly,  which  waited  in  almost  breathless  silence  for 
what  he  might  say.  It  was  a  moment  of  vindication  and 
triumph.  The  political  party  which  had  placed  him  in  that 
high  position  of  trust  and  responsibility  had  set  its  seal 
of  approval  upon  his  course,  and  had  ratified  his  actions 
that  had  been  the  subject  of  so  much  earnest  discussion. 


IN    THE    MEASURE    OF   APPRECIATION  283 

bitter  criticism  and  fierce  controversy.  It  was  the  culminat- 
ing moment  of  his  public  career,  for  already,  though  they 
knew  it  not,  the  end  of  his  activity  was  drawing  near  and 
he  stood  before  them  as  one  upon  whom  the  shadow  of 
eternity  had  already  fallen  and  whose  mind  was  set  upon 
higher  than  earthly  things.  In  that  supreme  moment  he 
found  occasion  only  for  the  simple  words :  "I  thank  you ; 
I  thank  you  from  the  bottom  of  my  heart." 

In  presenting  the  name  of  Robert  W.  Steele  before 
the  Democratic  state  convention  for  renomination,  former 
Governor  Alva  Adams  had  said  : 

"There  is  no  need  of  verbal  credentials.  The  written  records 
of  our  courts  are  his  vouchers.  His  life  and  official  career  are  a 
part  of  Colorado's  history.  He  is  not  an  experiment,  but  a  loyal 
servant,  tried  and  true. 

"The  name  Robert  W.  Steele  is  to  Colorado  people  more  elo- 
quent than  any  oration  my  tongue  can  weave.  His  decisions  are  a 
proud  chapter  in  the  annals  of  western  jurisprudence. 

"For  no  act  will  his  courage  be  more  respected  than  when,  in 
indignant  rebuke  of  his  court,  he  wrote  upon  a  political  decision  the 
protest:  'I  dissent  from  the  judgment  of  the  court  because  it  is 
unwarranted,  is  without  precedent  and  directly  contrary  to  law.' 
This  burst  of  judicial  indignation  blazes  from  a  page  of  political 
infamy  as  a  fixed  star  shines  from  midnight  blackness.  In  the 
keeping  of  such  fearless  and  just  men  Colorado  may  well  trust  her 
liberties. 

"Judge  Steele  is  not  devoid  of  political  convictions,  but  upon 
the  bench  he  is  not  partisan.  He  deals  in  law  and  justice  and  not 
partisanship.  Before  his  tribunal  all  factions  may  stand  with  con- 
fidence. For  political  friends  and  political  foes,  for  rich  and  poor, 
for  corporations  and  their  patrons  he  has  but  one  reading  of  the  law. 

"As  a  man  and  a  citizen  he  is  respected  by  all.  From  boyhood 
to  middle  life  he  has  walked  the  ways  of  Colorado  and  no  calumny 
has  touched  him.     No  stain  has  marred  his  escutcheon. 

"His  integrity  is  as  firm  as  yonder  mountains,  his  character  as 
white  and  pure  as  the  snows  that  yesterday  fell  upon  their  high- 
lifted  summits.  As  a  neighbor  and  a  friend  he  typifies  Homer's 
modest  hero,  'who  lived  in  a  house  by  the  side  of  the  road  and  was 
the  friend  of  man.'  A  true  son  of  Colorado,  he  will  ever  uphold 
the  dignity  and  fair  fame  of  the  state.  As  a  candidate  he  will 
appeal  to  the  patriotism  and  highest  ideals  of  our  people." 


284  ROBERT    WILBUR    STEELE 

On  October  13,  1910,  Governor  John  F.  Shafroth 
issued  an  official  proclamation,  as  follows : 

"Whereas,  the  Hon.  Robert  W.  Steele,  chief  justice  of  the 
Supreme  Court  of  the  state  of  Colorado,  died  on  Wednesday  eve- 
ning, October  12,  1910;   and, 

"Whereas,  Justice  Steele  had  been  a  member  of  the  Supreme 
Court  for  the  period  of  ten  years,  and  in  that  time  has  established 
the  highest  reputation  for  judicial  ability,  conscientious  action  and 
honorable  conduct;  and, 

"Whereas,  he  was  beloved  by  all  the  people  of  this  common- 
wealth, whose  people  desire  to  show  their  appreciation  of  his  high 
moral  character  by  having  an  opportunity  to  view  his  remains;  it 
is  therefore 

"Ordered,  that,  as  a  tribute  to  his  high  worth,  the  body  of 
Justice  Steele  lie  in  state  in  the  capitol  building,  in  Denver,  Colo- 
rado, between  the  hours  of  2  o'clock  and  6  o'clock  p.  m.  on  Friday, 
October  14,  1910,  at  which  time  the  opportunity  will  be  given  to  all 
friends  and  admirers  who  desire  to  pay  this  respect  to  his  memory. 
It  is  further 

"Ordered,  that  all  the  offices  in  the  capitol  building  be  closed 
between  the  said  hours,  and  that  the  flag  at  the  state  house  be 
carried  at  half-mast  for  four  weeks. 

"Given  under  my  hand  and  the  executive  seal  this  13th  day  of 
October,  A.  D.  1910.  "John  F.  Shafroth,  Governor." 

The  following  resolutions  were  presented  to  the  house 
and  senate  by  a  special  committee  and  were  adopted  by 
unanimous  vote : 

"Resolved,  that  the  death  of  Chief  Justice  Robert  W.  Steele  of 
the  Supreme  Court  of  the  state  of  Colorado  during  the  session  of 
the  Seventeenth  general  assembly  has  devolved  upon  its  members 
the  sad  duty  of  giving  form  and  expression  to  their  feelings  over 
an  event  which,  in  common  with  the  citizens  of  the  entire  common- 
wealth, has  overwhelmed  them  in  a  great  affliction.  For  ten  years 
he  was  a  member  of  the  highest  court  of  the  state;  he  there  served 
the  cause  of  justice  without  fear  and  without  reproach.  His  strength 
of  purpose,  his  courageous  independence,  his  broad  sympathies,  his 
strong  and  thoughtful  utterances  commanded  heed  throughout  the 
state  and  aided  in  maintaining  the  people's  respect  for  the  law. 
His  public  life  was  a  potent  force  for  personal  and  civic  righteous- 
ness. But  the  influence  of  his  public  activity  and  achievement  was 
no  less  forceful  than  the  depth  and  richness  of  his  private  life, 
pure  in  mind,  unaffected,  gentle,  honest  and  sincere,  a  beloved 
jurist,  a  friend  of  all  men. 

"Resolved,  further,  that  in  the  midst  of  universal  grief  we  are 
not  unmindful  of  the  greater  affliction  which  the  death  of  Justice 
Steele  has  visited  upon  his  own  family,  the  loving  wife  and  other 


IN    THE    MEASURE    OF   APPRECIATION  285 

relatives;  to  them  we  tender  our  most  heartfelt  and  abiding  sym- 
pathy in  this,  the  darkest  hour  of  their  existence. 

"Resolved,  further,  that  this  resolution  be  spread  upon  the 
journals  of  the  senate  and  the  house  of  representatives,  and  that  a 
duly  engrossed  copy,  properly  signed,  be  forwarded  to  the  family 
of  Justice  Steele." 

The  following,  Senate  Joint  Resolution  No.  13,  was 
adopted  by  the  Eighteenth  General  Assembly  in  February, 
1911 : 

"Whereas,  the  Honorable  Robert  W.  Steele,  chief  justice  of  the 
Supreme  Court  of  the  state  of  Colorado,  died  on  October  12,  1910; 
and, 

"Whereas,  Justice  Steele  had  been  a  member  of  the  Supreme 
Court  of  this  state  for  the  period  of  ten  years,  and  for  many  years 
prior  thereto  had  served  the  people  of  this  state  as  judge  in  other 
courts  thereof,  and  in  that  time  had  established  the  highest  reputa- 
tion for  judicial  ability,  conscientious  action  and  honorable  conduct; 
and, 

"Whereas,  he  was  beloved  by  all  the  people  of  this  common- 
wealth, and  it  is  fitting  and  proper  that  a  memorial  should  be 
placed  to  perpetuate  his  memory;  now,  therefore,  be  it 

"Resolved,  by  the  Senate  of  the  Eighteenth  general  assembly 
of  the  state  of  Colorado,  the  House  of  Representatives  concurring 
therein,  that  a  memorial  window  of  Justice  Steele  shall  be  erected 
and  placed  in  the  Supreme  Court  room  at  the  state  capitol,  and  that 
the  governor  and  chief  justice  of  the  Supreme  Court  of  the  state 
of  Colorado,  together  with  the  treasurer  of  the  state  of  Colorado, 
are  hereby  appointed  a  commission  to  superintend  and  have  charge 
of  the  placing  of  said  memorial  window. 

"Stephen  F.  Fitzgarrald, 

"President  of  the  Senate. 
"Geo.  McLachlan, 
"Speaker  of  the  House  of  Representatives. 
"Approved  February  9,  1911. 

"John  F.  Shafroth, 

"Governor  of  Colorado." 

In  accordance  with  this  resolution,  a  stained  glass 
memorial  window  was  placed  in  the  Supreme  Court  room 
according  to  the  design  as  shown  opposite  page  253  of  this 
volume. 

The  Denver  Bar  Association  adopted  the  following 
resolution : 

"VVe  join,  with  a  grief  peculiarly  our  own,  in  the  state-wide 
mourning  over  the   death   of  Robert  Wilbur   Steele.     He   was  one 


286  ROBERT    WILBUR    STEELE 

of  US.  The  late  chief  justice,  whose  untimely  death  has  brought 
sorrow  to  all  our  people,  grew  up  among  us  and  with  us;  here  his 
boyhood  days  were  spent;  here  he  made  his  preparations  for  the 
bar;  here  was  the  scene  of  his  first  professional  and  judicial  labors; 
among  the  members  of  this  association  are  still  left  some  of  his 
preceptors,  a  dwindling  number  of  his  predecessors,  many  of  his 
contemporaries,  and  those  younger  men,  now  in  the  majoritj^  who 
have  observed  his  course  and  had  the  benefit  of  his  example. 

"This  tribute  of  the  Denver  Bar  Association  is  based  on  knowl- 
edge of  the  splendid  personality  we  eulogize.  As  lawyers  we 
cannot  but  know  the  worth  of  his  sterling  character,  his  unswerving 
integrity,  his  nobility  of  thought,  his  high  sense  of  personal  honor, 
and  his  faithful  adherence  to  all  his  own  high  precepts  in  time  of 
adversity  and  trial ;  it  was  these  qualities  which  endeared  him  to 
us  and  secured  the  profound  appreciation  of  the  public  at  large. 

"The  wide  sympathy  of  his  nature,  his  innate  love  of  justice, 
and  his  strong  desire  to  fit  the  abstract  principles  of  law  to  the 
rapidly  developing  theories  of  human  rights,  brought  from  our 
citizenship  a  quick,  intelligent  and  appreciative  response.  His 
decisions  while  on  the  Supreme  bench  will  ever  remain  a  monument 
to  his  ability,  patriotism  and  sense  of  right.  His  mind  was  of  that 
fine  texture  which  was  quick  to  detect  wrong;  he  despised  mean- 
ness, dishonesty,  chicanery,  and  the  defilement  which  an  intensely 
commercial  age  has  brought  into  our  business  and  political  life. 
In  him  there  was  no  spirit  of  compromise  with  evil. 

"We  believe  his  public  career  to  have  been  of  great  service  to 
the  state  he  loved  so  well.  He  has  left  us  a  heritage  which  will 
be  found  of  increasing  value  as  the  years  pass  on.  We  admired 
his  character  in  private  life,  his  conduct  in  official  life,  and  we 
prize  above  all  intellectual  attributes  the  full,  lovable  and  rounded 
proportions  of  his  complete  and  finished  manhood. 

"The  years  of  our  friend  seem  unfinished,  but  their  incomplete- 
ness is  in  numbers  only.  'That  life  is  long  which  answers  life's 
great  end.' 

"Respectfully  submitted, 

"T.  J.   O'DONNELL, 

"G.  C.  Bartels, 
"C,  S.  Thomas, 
"James  H.  Brown, 
"Ralph  Talbot, 
"H.  M.  Orahood. 
"F.  W.  Sanborn, 
"R.  J.  Pitkin, 

"Committee." 

Upon  the  occasion  of  the  presentation  of  the  memorial 
of  the  Denver  Bar  Association,  Justice  Campbell,  between 
whom  and  Judge  Steele  a  strong  personal  friendship  existed 
for  many  years,  responded  for  the  Supreme  Court,  saying : 


IN    THE    MEASURE    OF   APPRECIATION  287 

"The  approval  of  the  pure  and  upright  is  a  laudable 
longing  of  every  normal  person.  If  to  the  late  chief  justice 
could  be  wafted  the  glowing  eulogy  of  his  bar  and  the 
eloquent  addresses  of  distinguished  lawyers,  he  would  cher- 
ish the  winged  words  of  appreciation  as  balm  to  his  weary 
soul.  The  subject  of  this  memorial  was  no  ordinary  man ; 
from  early  manhood,  almost  continuously  to  the  end  of  an 
eventful  life,  he  held  public  office  in  the  judicial  department 
of  government — as  clerk  of  the  County  Court,  district  attor- 
ney, county  judge,  and  a  judge  on  this  bench.  In  these 
important  offices,  with  which  an  appreciative  people  honored 
him,  he  brought  that  fidelity  and  personal  integrity  and 
devotion  to  duty  which  a  sensitive  conscience  should  always 
devote  to  public  trusts.  His  was  a  forceful,  positive, 
aggressive  and  dominating  personality,  and  yet,  harmoni- 
ously co-operating  with  these  virile  qualities,  was  almost  a 
woman's  tenderness,  which  softens  the  asperity  of  conduct 
these  qualities  alone  engender.  Impetuous  and  daring  as 
he  was,  at  times  almost  to  rashness ;  firm  and  unyielding, 
nearly  to  obstinacy,  when  a  matter  of  profound  conviction 
was  involved;  nevertheless,  he  was  cautious,  given  to  exact- 
ing introspection,  and,  under  sympathetic  treatment,  yield- 
ing, nearly  to  the  point,  but  not  beyond,  of  surrendering 
opinion  in  matters  of  less  moment.  '•'  *  *  It  was  his 
administration  on  the  probate  side  of  the  County  Court  that 
merits  more  than  passing  notice,  and,  from  many  conversa- 
tions, I  know  it  was  in  this  branch  of  judicial  labor,  and  at 
this  juncture  of  his  career,  that  he  took  the  most  unalloyed 
satisfaction,  and  of  which  he  was  most  justly  proud.  With 
his  rapidly  growing  county  of  old  Arapahoe,  the  probate 
docket  kept  pace,  and  the  probate  business,  combined  with 
the  civil  causes  there  pending,  was  beyond  the  endurance  of 
any  one  man.  Unfortunately,  the  vitally  important  probate 
business   at  times  had  been   neglected   as   a   result  of  the 


288  ROBERT    WILBUR    STEELE 

importunities  of  living  suitors  who  were  parties  to  civil 
causes.  The  latter  were  present  to  press  their  own  cases, 
while  the  decedent  could  not  care  for  his  own  estate,  and, 
out  of  the  opportunity  which  was  afforded  by  the  inability 
of  the  court,  for  lack  of  time,  to  prevent,  the  faithless  repre- 
sentative sometimes  sacked  the  estate,  or  permitted  others  to 
plunder  it.  Judge  Steele  quickly  put  a  stop  to  all  these 
exploitations.  No  pressure  of  civil  business,  no  artifice  ever 
so  cunningly  devised,  no  subterfuge  be  it  ever  so  adroit,  was 
permitted  to  withdraw  his  careful  oversight,  or  withhold  his 
intelligent  protection  of  the  great  and  small  estates  which 
passed  through  his  court.  The  rights  of  widows  and 
orphans,  of  the  insane  and  minors,  of  the  unfortunates  of 
every  class,  were  safeguarded  by  his  watchful  eye,  and  all 
attempts  to  prey  upon  them  that  were  brought  to  his  atten- 
tion were  frustrated.  Here  was  the  public  field  in  which 
Judge  Steele  especially  shone,  and  here  he  set  an  example 
of  public  rectitude,  courage  and  devotion  worthy  of  imita- 
tion by  his  successors." 

Many  other  organizations  adopted  resolutions  express- 
ing their  high  opinion  of  Judge  Steele's  character  and  their 
recognition  of  his  work.  Among  these  were  the  Denver 
Chamber  of  Commerce,  the  Christian  Citizenship  Union, 
many  trades  and  labor  organizations  in  Pueblo,  Silverton 
and  other  cities  of  the  state,  and  the  bar  associations  of 
many  counties. 

On  January  ii,  1912,  the  Board  of  Education  of  the 
Denver  school  district  named  the  new  building,  located  on 
Marion  street  between  Alameda  and  Dakota  streets,  the 
Robert  W,  Steele  School.  The  first  section  of  the  building 
was  completed  ready  for  use  at  the  beginning  of  the  fall 
term  in  1913.  This  memorial  is  shown  in  the  illustration 
facing  page  157. 


IN    THE   MEASURE    OF   APPRECIATION  289 

The  following  extracts  from  letters,  articles  and  per- 
sonal statements  will  serve  to  show  further  how  Judge 
Steele  was  regarded,  as  an  official  and  as  a  man,  by  the 
men  of  his  own  time,  who  knew  him  best  and  who  came 
into  closest  touch  with  the  charm  of  his  personality.  Yet 
these  are  only  illustrative,  for  his  widest  appreciation  came 
from  the  great  masses  of  the  people,  from  the  unlettered 
as  well  as  the  learned,  from  both  rich  and  poor,  and  from 
all  sorts  and  conditions  of  men  who  recognized  integrity 
and  justice  and  righteousness. 

Rev.  Allan  A.  Tanner,  D.D. : 

"Judge  Steele  was  so  far  ahead  of  his  day  in  his  under- 
standing of  human  need,  and  in  his  vision  of  that  justice 
which  includes  inquiry  into  the  purposes  of  the  Creator,  that 
there  was  no  possibility  of  his  being  fully  appreciated  or 
even  fully  understood.  If  it  had  not  been  for  his  wonderful 
poise  and  balance  he  would  have  been  altogether  out  of 
place  in  our  yet  acquired  civilization.  What  a  remarkable 
combination  he  was  of  compassion  and  of  common  sense,  of 
sympathy  for  the  poor  and  of  fairness  toward  all !  He  was 
of  the  Lincoln  type  of  statesmen,  of  the  Christ  type  of 
Christians.  There  is  no  measuring  of  what  Judge  Steele 
suffered  over  the  woes  and  wrongs  of  those  around  him,  but 
upon  such  men  progress  must  depend  both  in  this  world 
and  in  the  world  unseen.  How  idle  it  is  to  ask  if  such  men 
are  religious,  for  no  man  holds  the  ideals  that  Judge  Steele 
held,  no  man  faces  opposition  in  the  heroic  way  that  Judge 
Steele  did,  unless  he  is  a  real  student  and  follower  of  the 
ways  and  will  of  God." 

Mrs.  Nannie  O.  S.  Dodge : 

"Robert  W.  Steele  was  a  member  of  the  highest  class 
in  the  Denver  high  school  when  I  became  a  teacher  in  that 
school  in  1875. 


290  ROBERT  WILBUR  STEELE 

"The  school  was  small  and  teachers  and  pupils  were 
almost  like  one  family.  That  was  the  day  of  beginnings, 
the  time  when  precedents  were  established  which  have  since 
become  rules  and  traditions. 

"Robert  Steele  was  interested  in  the  regular  school 
work,  but  still  more  interested  in  helping  to  establish  and 
organize  for  the  future.  The  first  literary  society,  the 
Lyceum,  was  begun  largely  through  his  efforts.  The 
debates  which  gave  practice  in  parliamentary  usage  were  a 
delight  to  him.  Always  modest,  he  forgot  himself  com- 
pletely when  on  his  feet  debating,  delivering  an  oration  or 
declamation,  or  when  acting  as  chairman  of  any  organi- 
zation. 

"After  graduation  school  was  not  forgotten.  Robert 
interested  himself  in  founding  the  alumni  association  and 
became  its  first  president.  The  Denver  high  school  never 
had  a  more  loyal  friend  and  has  reason  to  be  proud  of  the 
whole  career  of  this  recognized  leader  of  its  first  graduating 
class. 

"During  the  years  between  the  graduation  of  this  boy 
and  the  passing  of  this  chief  justice  of  Colorado  I  saw  my 
friend  and  former  pupil  often  and  watched  his  work  with 
great  interest.  Many  of  the  traits  which  he  showed  as  a 
boy  marked  him  as  a  man.  He  was  a  leader  and  organizer ; 
was  always  conscientious,  kind  and  just,  modest  and  able, 
ever  trying  to  assist  those  in  trouble,  always  taking  a  firm 
stand  for  what  he  considered  right,  even  when  he  must  stand 
alone. 

"These  words  fittingly  describe  the  life  of  my  true 
friend : 

"'He  did  justly;  he  loved  mercy;  he  walked  humbly 
with  his  God.'  " 


IN    THE    MEASURE    OF    APPRECIATION  29I 

Mr.  Frank  S.  Woodbury  : 

"From  the  ages  of  14  to  51,  Robert  W.  Steele  and  I 
were  classmates,  friends  and  confidants.  First  and  foremost 
among  his  characteristics  was  his  remarkable  instantaneous 
perception  of  right  and  wrong.  He  instinctively  separated 
the  true  from  the  false,  without  the  slightest  apparent  effort. 
He  had  sincere  sympathy  and  a  helping  hand  for  those  who 
were  down.  He  never  considered  the  hope  of  reward  for 
himself.  His  sense  of  justice  which  finally  made  him  so 
distinguished  sprang  from  this  combination  of  the  sense  of 
right  and  wrong  with  human  sympathy.  No  honors  could 
exalt  him  above  his  old  friends.  To  know  him  well  was  to 
love  him." 

Mr.  William  G.  Evans : 

One  of  Judge  Steele's  most  intimate  friends  and  asso- 
ciates was  Mr.  William  G.  Evans,  whose  father.  Governor 
John  Evans,  had  been  a  friend  and  hunting  companion  of 
Doctor  Steele  in  the  old  days  in  Ohio.  Though  often  at 
variance  in  matters  of  politics  and  public  policy,  there  was 
never  any  weakening  of  their  personal  friendliness.  "Robert 
Steele,"  said  Mr.  Evans  recently,  "was  especially  distin- 
guished for  his  personal  character,  which  was  without  a 
flaw.  Clean  and  upright  in  all  things,  he  made  a  splendid 
record  as  clerk  of  the  Probate  Court,  as  district  attorney, 
as  county  judge  and  as  judge  of  the  Supreme  Court.  As 
county  judge  his  work  was  especially  commendable,  and  his 
supervision  of  the  estates  that  came  under  his  care  as  probate 
judge  was  of  the  highest  type  of  public  service.  His  busi- 
ness ability  was  demonstrated  by  his  successful  investments 
made  by  him  early  in  life,  and  his  conduct  in  the  trying 
days  of  the  panic,  and  in  the  disentanglement  of  financial 
complications  for  which  he  was  only  partially  responsible, 
was  highly  creditable  to  him.  In  early  life  he  was  greatly 
interested  in  politics,  and  at  one  time  he  had  a  stronger 


292  ROBERT  WILBUR  STEELE 

personal  following  of  friends  and  admirers  than  any  other 
young  man  of  the  city  or  state.  He  was  always  kindly  and 
helpful  toward  those  that  needed  his  help,  and  a  true  friend 
to  his  many  friends.  His  energy  also  was  remarkable,  and 
he  was  always  active  in  whatever  cause  engaged  his  interest. 
His  purity  and  integrity  of  life,  his  kindliness  of  disposition 
and  his  nobility  of  purpose  won  the  respect  and  the  approval 
of  all." 

Mr.  William  Holt,  Seattle,  Wash. : 

"The  newspaper  comments  show  how  strong  and  nobly 
he  stood  before  the  people;  and  this  was  the  result,  not  of 
ostentation,  but  of  simple  life,  love  and  truth.  I  never  read 
more  heartfelt  words  of  love  and  sympathy.  He  was  liked 
not  alone  for  his  ability  and  comprehensive  mind,  but  his 
big  heart  appealed  to  and  touched  everyone  who  knew  him." 

Mr.  R.  D.  Thompson: 

"He  was  a  man  of  pure  life.  He  was  warm  in  his 
friendships  and  always  loyal  to  his  friends.  I  don't  believe 
there  was  a  spark  of  hypocrisy  in  this  nature.  I  never  heard 
anyone  even  intimate  that  he  could  be  guilty  of  a  dishonor- 
able act.  He  had  the  faculty  of  making  friends.  In  his 
friendships  he  always  was  sincere.  Those  who  knew  him 
loved  him.  His  friendship  was  warm  and  cordial,  some- 
thing worth  having." 

Governor  John  F.  Shaf  roth : 

"I  had  the  highest  appreciation  of  the  character  of 
Justice  Steele.  He  was  one  of  the  most  able  and  conscien- 
tious men  who  ever  served  in  the  Supreme  Court.  Our  loss 
is  incalculable.  There  was  a  conscientiousness  running 
through  all  his  decisions  that  made  him  an  object  of  love  of 
the  people  of  Colorado." 


IN    THE    MEASURE    OF   APPRECIATION  293 

Mrs.  Mary  C.  C.  Bradford : 

"The  state  of  Colorado  can  boast  of  many  illustrious 
citizens,  but  of  none  who  have  left  a  nobler  record  than  that 
contained  in  the  life  of  Robert  W.  Steele. 

"As  a  student,  a  lawyer  and  sitting  upon  the  bench, 
his  vision  was  clear  and  true,  his  conscience  responsive  to 
the  demand  of  the  essentially  great  things  that  move  men's 
souls  to  action. 

"In  his  family  life  he  realized  all  the  ideals  of  those 
who  regard  the  home  as  the  holy  of  holies  of  a  nation's  life. 

"A  friend  of  the  friendless,  a  dispenser  of  justice,  a 
valiant  leader  in  every  cause  that  made  for  righteousness, 
Robert  W.  Steele  expressed,  in  public  and  in  private,  the 
inspiration  of  the  early  days  of  the  republic,  yet  greeted 
with  welcome  those  social  transformations  that  bid  fair  to 
make  the  twentieth  century  a  glorious  jewel  in  the  rosary 
of  the  ages. 

"Indomitable,  patient,  far-seeing,  of  unfaltering  cour- 
age, Colorado's  great  chief  justice  was  yet  as  single-minded 
as  a  child  and  tender  and  forgiving  as  a  woman. 

"All  too  cold  and  colorless  are  these  words  to  fully 
interpret  the  beauty  of  the  years  wherein  he  spent,  and  was 
spent,  for  his  beloved  state.  Yet,  warmed  with  a  grateful 
friendship,  they  are  offered  here  as  a  tribute,  however 
inadequate,  to  this  uncorruptible  son  of  a  great  state." 

Mr.  Thomas  M.  Patterson: 

"I  had  known  Robert  W.  Steele  as  man  and  boy  for 
thirty-five  years,  but  until  he  was  elected  justice  of  the 
Supreme  Court  my  knowledge  of  him  was  only  such  as  one 
has  of  another  who  is  his  townsman,  but  between  whom  and 
himself  there  was  but  little  intimacy  and  no  confidences. 

"I  knew  he  was  the  son  of  a  pioneer  physician  and 
public-spirited  citizen  who  was  known  and  held  in  high 
regard  by  the  people  of  the  entire  state. 


294  ROBERT    WILBUR    STEELE 

"When  county  judge  he  developed  into  a  jurist  of 
sweet  and  lovable  bearing,  of  large  sympathies — one  who 
never  lost  sight  of  the  equities  in  the  cases  he  was  required 
to  decide. 

"His  nomination  and  election  to  the  high  office  of 
Supreme  Court  justice  came  as  a  surprise  to  him.  He  was 
not  a  candidate  for  the  nomination  in  any  sense.  His  party 
tendered  it  to  him  with  a  unanimity  begotten  of  a  knowledge 
of  his  splendid  manly  qualities  and  absolute  faith  in  his 
capacity  and  integrity. 

"It  was  after  his  election  that  I  began  to  know  him 
well.  I  recall  a  conversation  with  him,  after  he  had  donned 
the  judicial  robes,  that  showed  in  bright  light  his  modesty — 
I  might  almost  say  his  humility.  'My  selection  for  the 
Supreme  bench,'  he  said,  'dazed  me.  I  wondered  if  it  were 
possible  that  I  would  be  elected,  and  then  I  wondered 
whether  my  friends  wouldn't  regard  me  as  presumptuous 
for  daring  to  sit  with  the  other  judges  to  speak  the  final 
word  in  the  great  cases  that  body  was  constantly  called  upon 
to  decide.  It  was  a  long  time  before  the  thing  seemed  real. 
I  feared  I  would  wake  up  and  find  it  all  a  dream.' 

"But  when  he  once  assumed  the  duties  of  the  high 
bench  all  hesitation  vanished.  He  continued  to  be  the  same 
sweet,  lovable  man  that  had  locked  his  friends  of  former 
days  to  his  rise  and  fortunes.  His  low  voice  and  dark  brown 
eyes  gave  help  and  confidence  to  the  young  and  untried 
lawyer;  his  receptive  attitude  and  searching  questions 
assured  the  well  trained  lawyer  that  he  was  addressing  a 
keen  analyst  and  capable  critic.  From  the  first  case  in  which 
he  sat  till  the  hour  he  was  stricken,  the  bar  of  the  state 
realized  that  they  had  selected  a  brave,  wise  and  fearless 
judge  and  that  law  and  justice  had  acquired  an  exponent 
and  defender  that  would  advance  them  over  all  obstacles 
and  maintain  them  at  whatever  cost. 


IN    THE    MEASURE    OF   APPRECIATION  295 

"He  became  Supreme  Court  judge  in  a  critical  time  for 
the  state.  It  was  in  economic  and  social  unrest.  Labor 
troubles  of  vast  proportions  challenged  the  rich  and  power- 
ful to  disregard  the  fundamentals  of  free  government  and 
to  seat  wealth  in  the  places  framed  for  law  and  human 
rights.  Some  judges  yielded  to  the  passions  of  those 
troublesome  times,  but  Judge  Steele,  never.  In  a  series  of 
cases  that  the  troubles  evoked  strange  law  was  announced 
from  the  bench,  but  Judge  Steele's  dissenting  opinions  ever 
marked  the  line  at  which  law  and  justice  strayed  from  their 
orbits  and  to  which  in  the  calmer  hours  public  opinion 
forced  them  to  return  to  resume  their  orderly  course. 

"The  night  before  Judge  Steele  was  stricken  I  walked 
with  him  to  our  homes,  which  were  in  the  same  neighbor- 
hood. It  was  quite  near  the  midnight  hour  and  the  skies 
were  placid  and  serene.  He  indulged  in  retrospect  which 
included  father,  mother,  wife  and  children  and  his  own 
fortunes,  past  and  future.  I  have  since  wondered  whether 
the  spell  of  the  illumined,  yet  unknown,  after-life  did  not 
lead  him  into  the  rhapsodies  and  confidences  of  that  last 
meeting. 

"The  next  day  the  blow  fell.  His  great  mind  was 
clouded;  his  great  heart's  throbs  were  numbered.  He 
passed  away,  his  memory  enshrined  with  the  affections  and 
admiration  of  every  class — of  the  rich  and  the  poor,  of  the 
millionaire  and  workingman.  They  all  felt  that  a  sheet- 
anchor  of  the  nation's  honor  and  safety  had  dragged  and 
with  his  death  had  broken." 

Mr.  Horace  N.  Hawkins: 

"The  judicial  record  of  Robert  W.  Steele  is  open  to 
all  who  will  read  the  Colorado  Supreme  Court  reports. 
Embalmed  forever  in  those  volumes  are  the  great  opinions 
delivered  by  him  in  support  of  the  liberty  and  freedom  of 


296  ROBERT    WILBUR    STEELE 

our  people — opinions  which,  as  long  as  our  republic  shall 
last,  will  be  precedents  against  oppression  and  injustice. 
But  to  those  who  enjoyed  an  intimate  acquaintance  with 
Judge  Steele,  no  reference  to  any  written  reports  is  neces- 
sary to  keep  alive  his  memory.  In  the  hearts  of  his  friends 
he  is  not  dead,  but  will  continue  to  live  as  long  as  those 
hearts  shall  beat.  I  never  knew  another  who  bound  so 
closely  to  him  in  love  and  loyalty  so  many  friends.  That 
he  had  a  legion  of  loyal  and  devoted  friends  is  shown  by 
the  fact  that,  although  he  was  modest  as  to  his  own  ability, 
even  to  the  point  of  diffidence,  almost  bashfulness,  yet  he 
advanced  step  by  step  until  he  stood  upon  the  highest  round 
of  the  judicial  ladder  in  our  state. 

"The  high  honors  with  which  he  was  crowned  were 
due  to  no  scrambling  or  pushing  or  place  seeking  upon  his 
part,  but  to  the  friends  who  demanded  of  him  that  he  accept 
the  honors  of  which  they  knew  him  so  worthy.  Had  he 
lived,  he  undoubtedly  would  eventually  have  graced  the 
highest  judicial  tribunal  of  the  nation. 

"Perhaps  above  all  else  that  attracted  to  him  so  many 
friends  was  what  was  commonly  spoken  of  as  his  strong 
sense  of  'fair  play.'  Whether  he  was  district  attorney, 
county  judge,  chief  justice  of  the  Supreme  Court,  or  simply 
a  private  citizen,  his  eyes  flashed  and  his  jaw  became  set 
when  he  saw  any  unfair  advantage  attempted  to  be  taken. 
Instinctively  he  went  to  the  rescue  of  the  'under  dog.' 
Scorning  technicalities  and  sophistry,  he  perceived  at  a 
glance  the  very  right  of  a  controversy  and  hesitated  not  to 
array  himself  with  those  unjustly  treated.  Many  times 
during  his  career  I  marveled  that  one  who  had  himself 
never  filled  a  lowly  position  in  life  could  so  thoroughly 
sympathize  with  the  very  poorest  of  our  citizens.  Truly, 
he  loved  his  fellow  man,  and  just  as  true  was  it  that  those 
who  knew  him  well  deeply  and  devotedly  loved  him. 


IN    THE    MEASURE    OF   APPRECIATION  297 

"I  repeat  that  in  the  hearts  of  his  friends  Robert  W. 
Steele  is  not  dead,  but  will  continue  to  live  as  long  as  those 
hearts  shall  beat." 

Mr.  Guy  Leroy  Stevick: 

"The  strongest  individual  influence  which  I  have  ever 
met  outside  of  my  immediate  family  was  Judge  Robert  W. 
Steele.  Whether  it  was  pleasure  or  business,  no  matter 
what  the  time,  the  place  or  occasion,  he  was  always  kind- 
hearted,  clear-visioned  of  what  was  right  or  wrong,  and 
strong  in  his  advocacy  of  what  he  believed  to  be  right, 
irrespective  of  its  effect  upon  his  personal  or  political  for- 
tunes. When  the  state  seemed  to  be  up  in  arms  over  irrec- 
oncilable differences  between  labor  and  capital,  the  one 
man  who  was  always  accessible,  and  to  whom  both  sides 
could  go  with  the  knowledge  that  their  views  would  be 
appreciated,  and  that,  however  great  the  difficulties,  ill-will 
would  have  no  part  in  the  discussion  and  good  humor  would 
prevail,  was  Judge  Steele. 

"One  of  the  most  beautiful  relations  imaginable  was 
that  between  Judge  Steele  and  his  son.  From  the  time 
Robert,  Jr.,  was  old  enough  to  go  along  on  vacation  outings, 
he  accompanied  his  father,  and  when  they  were  together 
there  was  complete  harmony  between  them.  This  was  due 
ac  much  to  the  reverence  and  love  of  the  son  as  to  the  kindly 
comradeship  of  the  father.  No  subject  of  conversation  was 
thought  of  and  no  kind  of  amusement  proposed  in  which 
the  boy  could  not  take  a  part  with  the  rest  of  us." 

Miss  Mary  F.  Lathrop : 

"Ever  since  I  was  admitted  to  the  bar  I  have  known 
Justice  Steele.  He  went  out  of  his  way  to  be  kind  to  me, 
as  he  did  to  other  embryo  lawyers  when  he  was  in  the 
County  Court.    His  genial  side  was  always  in  evidence." 


298  ROBERT    WILBUR    STEELE 

Dr.  S.  B.  McCormick,  chancellor  of  the  University  of 
Pittsburgh  : 

"*  *  *  More  than  twenty-seven  years  ago — about 
August  12,  1883 — I  first  met  Judge  Steele.  I  had  reached 
Denver  the  day  before  to  take  charge  of  R.  D.  Thompson's 
office.  He  was  starting  to  Europe  and  he  asked  me  to  take 
his  place  on  the  county  committee.  R.  W.  Steele  (he  was 
Bob  Steele  then,  and  he  has  all  these  twenty-seven  years 
been  Bob  Steele  to  me)  was  chairman  of  the  committee. 
The  qualities  in  him  which  bound  me  to  him  in  five  minutes 
and  which  have  held  me  close  all  the  years  since  are  the 
qualities  which  bound  and  held  the  whole  state  of  Colorado 
to  him  all  these  same  years,  and  which  made  him  the  beloved 
chief  justice  of  the  commonwealth." 

Judge  Ben  B.  Lindsey : 

"It  is  hard  to  get  a  Supreme  judge  in  these  days  of 
universal  suspicion  of  all  men  whom  everyone  can  trust  and 
love  and  respect.  Everybody  could  trust  and  love  Judge 
Steele,  and  all  did  so.  *  *  '■'  Judge  Steele  had  the 
keenest  sense  of  justice  I  have  ever  encountered.  He  was 
a  sociological  and  economic  student,  and  he  looked  always 
for  the  social  justice  of  a  thing.  "  *  *  On  questions 
of  social  right  he  rose  triumphant  and  rendered  decisions 
which  have  become  classic.  It  was  because  he  possessed 
that  sense  of  justice  to  such  a  remarkable  extent.  The  story 
is  told  of  the  great  Chief  Justice  John  Marshall,  of  the 
Supreme  Court  of  the  United  States,  that  he  was  once  asked 
how  he  rendered  his  decisions.  'I  do  what  seems  right  to 
me,  and  let  Brother  Story  find  the  authorities.'  Story  was 
the  great  lawyer  of  the  court  of  that  time, 

"Judge  Steele  put  me  on  the  County  bench.  I  entered 
the  law  offices  of  Thompson,  Steele  &  Malone  as  an  office 
boy,  and  I  scrubbed  floors  to  get  along.    And  the  man  who 


IN    THE    MEASURE    OF   APPRECIATION  299 

was  always  kind  to  me  and  who  had  always  an  encouraging 
word  and  a  pat  on  the  back  was  Judge  Steele.  When  he 
was  elevated  to  the  Supreme  bench  he  recommended  my 
appointment  as  his  successor.  I  was  appointed  and  his 
advice  and  help  to  me  were  invaluable. 

"I  remember  that,  after  he  had  been  on  the  Supreme 
bench  a  while,  Judge  Steele  said  to  me  one  day :  'Ben,  I 
would  rather  be  County  judge  than  a  Supreme  justice. 
Down  where  you  are  you  get  an  opportunity  to  help  people 
who  are  in  trouble.  You  can  talk  to  them  personally  and 
give  them  advice,  and  that  is  what  I  like.' 

"I  believe  that  Judge  Steele  had  more  friends  than  any 
other  man  in  the  state.  He  had  strong  opinions,  but  he 
made  friends  because  he  advocated  his  opinions  without 
bitterness." 

Mr.  Louis  F.  Post,  Washington : 

"In  his  period  of  activity,  when  so  many  officials — 
legislative,  administrative  and  judicial — had  withered  under 
the  influence  of  plutocracy,  Judge  Steele  seemed  like  a 
shadow  of  a  great  rock  in  a  weary  land.  Though  I  never 
knew  him  personally,  it  was  my  fortune  to  be  an  editorial 
observer  of  men  and  events  while  he  sat  upon  the  Colorado 
bench,  and  in  this  connection  his  high  service  came  to  my 
attention.  He  was  so  devoted  to  the  wholesome  ideals  of 
democratic  government,  so  firmly  grounded  in  the  great 
democratic  principles  of  the  law,  so  loyal  to  the  one  and  so 
clear  in  expounding  and  courageous  in  applying  the  other, 
that  his  personality  stood  out  in  splendid  relief  against  the 
dark  background  of  his  day." 

Mr.  Isaac  N.  Stevens : 

"On  my  arrival  here  more  than  a  quarter  of  a  century 
ago  as  a  young  man  I  met  Justice  Steele,  also  a  young  man. 


300 


ROBERT    WILBUR    STEELE 


and  a  friendship  was  then  formed  which  grew  closer  as  the 
years  passed. 

"I  soon  learned  to  appreciate  Mr.  Steele's  integrity  of 
thought  and  purpose  and  to  admire  his  ability. 

"From  young  manhood  to  the  ripened  years  of  middle 
life  he  constantly  grew  and  expanded  in  intellect,  in  soulful- 
ness  and  in  human  sympathy. 

"I  never  knew  a  more  tender,  a  more  courageous  or  a 
more  just  man." 

Hon.  Louis  W.  Cunningham : 

"I  can  recall  the  name  of  no  public  man  who  passed 
through  trying  ordeals  such  as  characterized  the  career  of 
the  late  chief  justice  with  such  fearless  composure,  and 
without  the  sacrifice  of  self-respect  or  public  confidence. 
At  times  of  great  crises  he  differed  radically  with  the  major- 
ity of  the  Supreme  Court  as  then  organized.  His  dissenting 
opinions,  ringing  out  boldly  and  clearly,  gave  hope  to  those 
who  were  battling  for  order  within  the  law  and  calmed  a 
disturbed  commonwealth." 

Father  William  O'Ryan: 

"I  knew  Judge  Steele  very  well.  We  never  met  for 
twenty  and  more  years  without  a  pleasant  stop  and  chat. 
His  father  and  I  were  quite  intimate  in  olden  times. 

"It  is  unnecessary  to  say  that  I  had  a  great  admiration 
for  Judge  Steele." 

Mr.  Frank  G.  Nagel,  Pacific  Grove,  Cal. : 

"Life  and  its  meaning  is  very  much  of  an  enigma  to 
most  of  us  who  have  failed  to  accomplish  what  seems  to 
have  been  easily  possible  to  us,  but  the  Boy  Orator  laid  a 
good  foundation  and  built  upon  it  a  reputation  for  upright- 
ness and  good-will  which  is  appreciated  throughout  the 
limits  of  his  state." 


IN    THE    MEASURE    OF   APPRECIATION  3OI 

Mr.  T.  J.  O'Donnell : 

"Judge  Steele,  as  became  his  ancestry,  was  intensely 
American  in  the  best  and  truest  sense  of  the  word.  To  him 
the  principles  of  the  Declaration  of  Independence,  the  guar- 
anties of  liberty  embodied  in  our  constitution,  the  theories 
of  human  rights  fructified  into  the  American  states  and 
nation,  were  living,  vital  things,  and  every  blow  struck 
against  them  found  him  full  armed  and  armored  for  their 
defense.  His  mind  was  too  keen  and  alert  not  to  discern 
the  least  insidious  attempt  to  undermine  the  foundations, 
and  those  open  assaults  which  he  so  sternly  resisted  found 
him  fully  accoutered  for  the  battle,  in  which,  though  beaten, 
he  was  never  conquered. 

"Robert  W,  Steele  was  gifted  with  a  mind  which 
thought  right.  Instinctively  he  knew  wrong,  no  matter  how 
disguised  or  how  fine  the  shadings ;  instinctively  he  despised 
meanness,  dishonesty,  chicane  and  all  the  defilement  which 
an  intensely  commercial  age  has  brought  into  our  business 
and  political  life." 

President  James  H.  Baker  of  the  Colorado  State  Uni- 
versity : 

"I  was  well  acquainted  with  his  father  and  as  well 
acquainted  with  the  young  man  as  a  principal  becomes 
acquainted  with  his  pupils.  I  took  great  interest  in  him  as 
a  boy.  He  possessed  a  lovable  personality  and  rich  nature. 
He  gave  promise  of  great  possibilities  and  I  took  great  pride 
in  his  development  and  advancement.  His  death  is  a  matter 
of  great  sorrow  to  me,  as  it  is  to  all  the  people  of  Colorado." 

Mr.  Thomas  P.  Fenlon,  Kansas  City,  Mo. : 
"To  the  state  of  Colorado,  to  which  he  was  such  a  con- 
spicuous honor,  I  offer  my  sincere  condolence  in  the  loss  of 
its  chief  justice,  who  brought  and  gave  to  its  highest  court 


302  ROBERT  WILBUR  STEELE 

such  high  character  and  learning  as  a  jurist,  such  a  pleasing 
personality,  such  refined  and  dignified  honesty  of  purpose 
and  mind,  that  it  has  taken  its  place  among  the  great  courts 
of  the  land,  and  has  been  left  a  heritage  by  its  chief  justice 
which  will  make  it  ever  a  court  to  be  aspired  to  by  those 
only  who  are  endued  with  the  lofty  and  clean  ideals  of 
judicial  integrity  held  by  Judge  Steele, 

"It  has  been  my  great  pleasure  and  privilege  to  have 
spent  part  of  two  summer  vacations  with  Judge  Steele,  and 
that  splendid  son  of  his,  whom  he  loved  so  well,  in  fishing 
on  the  White  River ;  the  memory  of  my  associations  and 
discussions  with  him  will  grow  sweeter  as  the  years  pass  on. 
How  he  loved  it  there  I  And  I  flatter  myself  and  am  pleased 
with  the  thought  now  that  I  contributed  a  little  to  his  enjoy- 
ment last  summer  in  some  twice  told  tales  of  my  fishing 
efforts  in  a  vain  ambition  and  attempt  to  equal  his  actual 
performances  in  pursuit  of  the  speckled  beauties. 

"I  had  even  begun  to  look  forward  at  this  early  date, 
in  accordance  with  his  express  wishes,  to  a  renewal  next 
summer  of  our  pleasing  incursions  to  the  White  River.  It 
would  hardly  seem  natural  to  go  there  now ;  the  echoes  from 
those  beautiful  and  eternal  mountains  and  the  restless  and 
unceasing  song  of  that  mountain  stream  would  remain,  but 
the  real  spirit  and  inspiration  would  be  only  a  memory;  it 
has  passed  to  the  farther  shore,  and  he  has  felt  already  'the 
breath  of  the  eternal  morning.'  " 

THE  TRIUMPH   OF   MORAL  ENERGY 

By  George  L.  Knapp: 

"To  me,  the  life  of  Judge  Steele  is  a  proof  of  what  can 
be  done  by  sober,  consistent  moral  energy.  I  do  not  mean 
the  so-called  moral  energy  which  exhausts  itself  in  pro- 
nouncing panegyrics  on  its  own  purity,  nor  the  closely  allied 
kind  which  has  a  club  out  for  every  sin  and  a  hand  out  for 


IN    THE    MEASURE    OF    APPRECIATION  303 

the  campaign  contribution  of  every  sinner.  I  mean  the 
steadfast  enthusiasm  for  justice,  for  fair  play,  for  personal 
liberty,  for  honesty  of  intellect  as  well  as  of  purse.  Judge 
Steele  had  this  enthusiasm  to  a  degree  never  rivaled  in  my 
experience  of  men ;  and  it  was  this  enthusiasm,  this  moral 
energy,  that  made  him  the  man  loved  and  trusted  by  the 
state  beyond  any  other  citizen.  When  Judge  Steele  saw 
justice  in  peril,  he  simply  could  not  help  fighting  for  it; 
and  the  greater  the  odds,  the  hotter  the  battle.  He  started 
out  in  life  with  a  good  brain,  yet  no  better  than  that  of 
thousands  of  men  whose  tombstone  alone  will  keep  their 
memory  beyond  the  year  of  their  death.  But  Steele's  brain 
was  free  from  all  bother  of  self-interest,  was  consecrated  to 
public  service  with  a  singleness  of  purpose  for  which  there 
are  few  parallels ;  and  a  brain  put  to  that  use  in  that  fashion 
is  bound  to  grow  and  increase. 

"The  full  measure  of  Judge  Steele's  service  to  the  state 
has  not  yet  been  taken ;  perhaps  cannot  be  taken  till  the 
generation  which  saw  his  work  shall  have  passed  away.  His 
dissenting  opinions  are  all  that  saved  the  state  from  utter 
judicial  disgrace;  but  personally  I  believe  his  presence  on 
the  bench  prevented  the  worst  of  the  conspiracies  of  that 
day  from  ever  coming  to  light.  Bad  as  were  the  decisions 
passed  over  his  protest,  I  have  little  doubt  they  would  have 
been  followed  by  worse  ones,  but  for  the  persistent  battle 
of  Judge  Steele.  You  may  vote  a  man  down  when  you 
know  that  he  is  right  and  you  are  wrong.  But  when  the 
man  comes  grimly  back  to  try  it  over  as  fast  as  occasion 
offers,  making  it  entirely  clear  the  while  just  what  he  thinks 
of  you  and  your  behavior,  there  comes  a  time  when  you  will 
go  out  of  your  way  rather  than  try  the  voting  down  game 
again. 

"No  man  was  more  devoted  to  the  interests  of  the 
people  than  Judge  Steele.     No  man  was  less  of  a  dema- 


304  ROBERT  WILBUR  STEELE 

gogue.  He  filed  his  dissenting  opinions  and  he  made  them 
as  sharp  as  words  could  make  them.  The  other  day,  when 
he  was  nominated  by  acclamation  by  a  convention  which 
would  not  really  agree  on  anything  else  under  the  sun,  the 
usual  call  was  made  for  a  speech.  Judge  Steele  came  out 
on  the  platform,  looked  out  over  the  sea  of  faces — the  faces 
of  his  supporters — and,  waving  his  hand  for  silence,  said 
merely:  'I  thank  you!'  He  never  hesitated  to  declare  his 
position.  He  was  never  afraid  to  go  on  record.  And  he 
never  played  to  the  galleries,  nor  allowed  himself  to  become 
a  worshipper  at  the  shrine  of  his  own  achievements. 

"I  am  sorry,  indeed,  that  we  cannot  make  our  own  the 
words  of  the  English  king  about  Earl  Percy,  and  say  that 
we  have  within  the  land  five  hundred  as  good  as  he.  But 
the  mournful  fact  is  that  we  have  them  not.  Steele  was  our 
Douglas ;  not  to  be  replaced.  The  state  does  not  lack  for 
men  of  intellect  and  conscience ;  but  it  has  none  who  can 
wield  the  power  for  good  which  the  years  and  his  own  char- 
acter and  the  love  of  the  people  had  put  into  the  hands  of 
Judge  Steele." 

HIS  SPIRIT  STILL  RULES 

By  Boyd  F.  Gurley : 

"  'I  am  perfectly  content  to  base  my  ultimate  judgment 
on  the  opinion  of  the  great  late  Chief  Justice  Steele.' 

"So  wrote  Justice  Hill  in  participating  in  the  decision 
which  changed  the  protest  of  Judge  Steele  into  the  funda- 
mental law  of  the  state. 

"It  is  well  that  this  statement  finds  a  place  in  the 
records  of  the  court  over  which  Judge  Steele  presided  when 
called  from  earth. 

"For  these  words,  reflecting  as  they  do  the  reverence 
which  the  great  mass  of  citizens  held  for  the  judge  who  saw 
only  Justice,  and  who  believed  in  Men,  give  evidence  of  the 


IN    THE    MEASURE    OF   APPRECIATION  305 

fact  that  in  death,  even  more  than  in  life,  Judge  Steele  will 
still  rule  the  highest  court  of  the  state. 

"Though  his  seat  upon  that  tribunal  is  filled  with 
another;  though  his  kindly  eyes  do  not  look  into  the  hearts 
of  men,  seeking  that  Substantial  Justice  be  done,  his  spirit 
hovers  over  its  sittings.  Consciously  or  unconsciously,  the 
judges  upon  that  bench  will  compare  their  own  judgments 
with  what  they  believe  he  might  have  done. 

"Almost  involuntarily,  the  judges  who  are  now  in 
power,  and  who  will  follow,  will  seek  for  that  vision  of 
right ;  that  belief  in  the  goodness  of  mankind  and  the  ability 
of  men  to  rule  themselves,  which  characterized  his  every 
judgment. 

"They  will  seek  that  democracy  of  soul  which  believes 
that  men  are  brothers  and  that  courts  are  constituted  to  do 
exact  justice  between  all. 

"The  decision  which  consolidates  the  city  and  county 
governments  is  no  vindication  for  Judge  Steele.  He  needed 
none.  The  people  always  believed  that  his  dissent  from 
the  order  of  the  majority  of  the  court  was  Law,  and,  though 
they  were  powerless  to  obtain  the  benefits  of  his  protest, 
looked  upon  his  opinion  as  the  just  one. 

"So  it  must  be  a  matter  of  satisfaction  that,  in  the 
official  confirmation  of  his  original  judgment,  the  tribute  of 
Judge  Hill  finds  a  place. 

"Those  who  are  fighting  the  cause  of  human  brother- 
hood have  missed  the  presence  of  Judge  Steele  these  past 
months.  They  have  felt  the  need  of  his  encouragement,  of 
his  kindly  wisdom  that  smiled  in  the  darkest  hours  and  kept 
Hope  alive ;  of  his  prophetic  philosophy,  grounded  in  a 
Catholicism  of  love  for  humanity  that  taught  always,  Tt 
will  all  be  right  in  the  end.' 

"These  may  know  that  he  has  not  gone,  nor  will  he 
ever  go,  from  the  influences  which  build  for  better  manhood 


306  ROBERT  WILBUR  STEELE 

and  more  freedom  in  this  state.  His  example,  his  wisdom, 
his  love  are  still  here,  to  guide,  to  inspire  and  to  encourage. 

"From  behind  that  curtain  which  separates  the  Present 
from  the  Eternal,  his  voice  has  whispered  the  same  message 
of  faith  in  humanity  and  in  the  power  of  the  people  to  rule 
themselves  which  he  spoke  in  so  firm  a  voice  but  a  few 
months  ago. 

"The  people  owe  something  to  Judge  Hill.  He  has 
reminded  us  that  there  are  men  who  are  so  akin  to  Truth 
that  they  share  its  eternity  of  influence." 

THE  PEOPLE'S  JUDGE  AND  HERO 

By  George  Creel : 

"Under  this  one  man's  protection,  a  people  went  for- 
ward to  goals  that  had  hitherto  lured  as  will-o'-the-wisps. 
As  Moses  struck  the  rock,  so  did  this  great  judge  strike  the 
law  that  justice  might  gush  forth  into  a  life-giving  stream. 
He  was  at  once  inspiration  and  achievement,  promise  and 
fulfillment. 

"The  gentleness  of  him,  his  sweetness,  simplicity  and 
utter  lack  of  ostentation — the  quiet  fashion  in  which  he 
worked  tremendous  things — all  contributed  to  a  certain  min- 
imization of  him  during  his  life.  The  Rockies  never  loom 
large  to  one  with  his  face  against  the  foothills ;  but,  pushed 
far  away  by  the  cold,  imperious  hand  of  death,  we  are  given 
perspective.  Judge  Steele  was  of  heroic  stature,  and  cast 
in  the  mighty  mold  that  gave  Alfreds  and  Charlemagnes 
and  Lincolns  to  the  world. 

"Is  this  too  much  to  say*?  Not  when  one  studies  his 
record,  reviews  his  career,  and  senses  his  achievements  and 
the  odds  against  which  they  were  won.  He  went  upon  the 
Supreme  bench  at  a  time  when  Colorado  lay  prostrate  under 
the  bloody  heel  of  anarchy — not  the  anarchy  screamingly 
feared  by  a  'kept'  press,  but  the  Anarchy  of  Special  Privi- 


IN    THE    MEASURE    OF    APPRECIATION  3O7 

lege,  the  Reign  of  Terror  instituted  by  predatory  million- 
aires in  lawless  control  of  the  law.  And  this  law  was  being 
torn  into  strips,  and  these  strips  were  used  to  tie  a  people 
hand  and  foot  that  they  might  be  pillaged  and  oppressed 
without  disturbance  or  resistance. 

"On  the  Supreme  bench  he  was  a  minority  of  one! 
Had  he  been  merely  honest,  only  that  kind  of  judge  who 
contents  himself  with  keeping  his  own  robe  clean,  he  would 
have  brought  no  relief,  worked  no  change.  But  he  was  a 
man  in  whom  justice  was  as  much  an  instinct  as  self- 
preservation  itself.  He  had  that  rare  passion  for  freedom 
and  liberty  and  equality  that  God  puts  in  certain  souls  lest 
the  altar  fires  of  hope  and  high  resolve  die  out  in  a  land. 
And  in  this  simple,  gentle,  kindly  man  there  was  as  great  a 
courage  as  ever  blazed  forth  on  battle  field,  or  snatched 
victory  from  impending  disaster. 

"He  fought.  No  concealing  shadows  for  him,  no  con- 
tent with  consciousness  of  personal  integrity !  Against  the 
whole  insolent,  vicious,  triumphant  System  he  threw  him- 
self, and  for  years  there  waged  a  silent,  deadly  hand-to-hand 
battle  that  meant  as  much  to  Colorado  as  did  Bunker  Hill 
to  the  colonists.  And  he  triumphed!  From  a  minority  of 
one,  he  became  a  majority  of  one.  His  dissenting  opinions — 
so  long  the  passionate  revolts  of  an  individual — became  the 
law.  He  ceased  to  write  upon  plain  paper  in  the  loneliness 
of  his  chamber,  and  burned  his  decisions  upon  the  statute 
books  of  the  state. 

"One  by  one  he  struck  off  the  bonds  that  bound  a 
people.  And,  as  he  worked,  the  slime  fell  away  from  the 
law,  and  it  shone  forth  on  all  the  golden  glory  that  was 
intended.  Instead  of  hatreds  and  revolts  against  the  law, 
there  came  appreciation  and  understanding.  And  Colorado 
arose,  stood  erect,  put  aside  all  harassing  and  hampering 
rages  and  resentments,  and  went  forward  in  courage  and 
hope  and  confidence." 


CHAPTER  XVII 

THE  MAN  WHOM  THE  PEOPLE  LOVED 

"I  have  always  thought  that  the  supreme  test  of  a  man's  use- 
fulness is  furnished  by  the  extent  to  which  he  possesses  the  love 
and  confidence  of  the  average  man.  If  that  is  universal  he  has 
not  lived  in  vain.  Measured  by  that  test,  Robert  W.  Steele's  fame 
was  richly  earned,  and  it  is  secure.  Deep  down  in  the  hearts  of 
all  classes  and  conditions  of  men  his  image  is  impressed,  his  mem- 
ory green.  *  *  *  And  what  a  heritage  to  us  all  is  his  memory, 
the  record  of  his  deeds,  his  worth  as  a  man,  his  greatness  as  a 
lawyer,  his  dignity  as  a  magistrate  i  *  *  *  What  he  did  has 
been  bequeathed  to  us  as  an  example  to  encourage  and  to  inspire. 
He  was  in  life  and  death  an  example  of  the  sublime  truth  that 
there  is  no  wealth  or  honor  like  that  which  comes  to  a  man  who,  in 
all  his  undertakings,  has  kept  his  faith  unbroken." — Charles  S. 
Thomas.  , 

Three  elements  go  toward  the  making  of  manhood : 
heredity,  environment  and  personality.  Out  of  the  eternal 
shadow  comes  the  spirit  that  is  materialized  in  the  form 
shaped  by  physical  inheritance,  and  through  the  pathways 
of  life  persons  and  events  play  their  complicated  parts  in 
the  formation  of  character  and  the  development  of  physical 
and  mental  powers  by  concurrence  with  or  resistance  to 
outside  influences.  Yet  among  the  three,  heredity,  environ- 
ment and  personality,  the  spirit  forever  remains  supreme. 

From  his  ancestors  of  the  Ohio  Valley  Robert  Steele 
drew  his  patriotism,  his  aptitude  for  culture  and  learning, 
and  his  strong  inclination  toward  those  traits  of  mind  and 
body  that  are  most  aptly  summarized  in  the  expression,  "an 
American  gentleman."  Those  hereditary  dispositions  were 
fixed  and  strengthened  by  the  associations  of  his  youthful 
years.  His  education  and  his  environment  in  early  Denver 
confirmed  his  democracy  of  thought  and  feeling  toward 
everyone  that  shared  his  highly  prized  right  of  American 
citizenship.    His  work  as  district  attorney  inculcated  respect 


THE    MAN    WHOM    THE    PEOPLE    LOVED  3O9 

for  law  and  order  and  gave  him  a  practical  experience  in 
dealing  with  the  demoralizing  and  disintegrating  forces  of 
modern  society.  In  the  County  Court  he  profited  by  the 
study  of  human  nature,  and  learned  to  judge  motive  and 
impulse  as  well  as  the  legal  issues  that  were  presented  to 
him.  In  the  activities  and  associations  of  politics  he  encoun- 
tered the  complicated  problems  of  matching  great  principles 
of  human  rights  and  liberties  to  the  trivial,  selfish  and  often 
sordid  conditions  of  local  government.  In  the  Supreme 
Court  his  mental  powers,  stimulated  by  responsibility,  rose 
and  expanded  to  the  measure  of  their  opportunity,  and 
proved  equal  to  the  demands  that  were  made  upon  them. 

But  the  man  whom  the  people  loved  was  neither  the 
manifestation  of  heredity  nor  the  product  of  circumstances. 
No  purely  materialistic  theory  can  account  for  the  way  in 
which  Robert  Steele,  from  the  days  of  his  childhood,  won 
the  liking  and  the  friendship  of  those  with  whom  he  came 
in  contact.  That  was  the  demonstration  of  a  spiritual  power, 
the  expression  of  a  personality  not  limited  by  the  physical 
laws  of  the  world,  but  drawn  from  the  reservoirs  of  eternity. 

Much  has  been  said,  and  it  ought  to  have  been  said,  of 
that  clear  and  intuitive  sense  of  right  and  wrong  which  was 
responsible  for  the  strong  and  inerrant  decisions  upon  the 
cases,  however  obscured,  that  were  presented  to  him.  But 
that  sense  of  truth  was  something  more  than  the  standard 
rule  by  which  he  tested  the  men  and  the  issues  before  him. 
It  is  not  even  sufficient  to  say  that  he  measured  his  own 
acts  by  the  same  standard  he  applied  to  others.  Robert 
Steele  was  not  the  servant  of  truth,  but  he  was  truth,  for 
his  spirit  was  the  spirit  of  truth. 

A  great  poet  has  written, 

"Once  to  every  man  and  nation  comes  the  moment  to  decide, 
In  the  strife  of  Truth  with  Falsehood,  for  the  good  or  evil  side." 

Had  Robert  Steele  made  such  a  choice,  had  he  deliberately 


310  ROBERT    WILBUR    STEELE 

and  definitely,  at  a  particular  time  in  his  career,  spurned 
concrete  offers  of  wealth  and  ambition  and,  consecrating 
himself  to  the  cause  of  liberty  and  humanity,  devoted  his 
life  to  a  party  or  a  creed,  he  would  have  deserved  com- 
mendation. 

"Then  to  side  with  Truth   is   noble   when   we  share   her  wretched 

crust 
Ere  her  cause  bring  fame  and  profit,  and  'tis  prosperous  to  be  just; 
Then  it  is  the  brave  man  chooses,  while  the  coward  stands  aside 
Doubting  in  his  abject  spirit,  till  his  Lord  is  crucified, 
And  the  multitude  make  virtue  of  the  faith  they  had  denied." 

There  is  no  record  in  the  life  of  Robert  Steele,  or  in 
the  knowledge  of  those  who  knew  him  best,  that  at  any  time 
he  ever  gave  consideration  to  a  choice  of  something  beneath 
the  level  of  his  intelligence  and  his  conscience.  Doubtless, 
opportunities  of  evil  and  of  debasement  came  to  him,  as 
such  opportunities  come  to  all  men.  Doubtless,  he  saw 
glittering  mirages  of  fame  and  honor  and  dazzling  allure- 
ments of  that  wealth  so  plentifully  bestowed  in  a  prodigal 
age.  Doubtless,  the  offer  was  made  to  him,  and  doubtless 
he  realized  that  the  offer  was  made,  of  "all  the  kingdoms  of 
the  earth  and  the  glory  of  them"  for  no  greater  price  than 
abasement  before  the  Devil  of  greed  and  selfishness. 

But  Robert  Steele  was  the  Robert  Steele  whom  the 
people  loved  because  the  proposition  to  sell  his  birthright 
for  a  mess  of  pottage  did  not  appeal  to  him.  The  unfolding 
of  his  personality  through  the  years  was  something  more 
than  the  shaping  of  a  material  being  through  the  incidence 
of  events.  It  was,  rather,  the  progressive  triumph  of  a 
Master  Spirit,  embodied  in  earthly  form,  rising  ever  to  the 
level  of  higher  opportunities  and  using  every  experience 
gained  and  power  won  as  instruments  for  the  achievement 
of  better  things.  The  people  of  the  state,  who  trusted  him, 
were  not  disquieted  by  the  fear  that  he  might  prove  unwor- 
thy, because  they  felt  that  his  integrity  was  not  an  acquired 


THE    MAN    WHOM    THE    PEOPLE    LOVED  3II 

habit,  nor  a  matter  of  preference,  but  it  was  something  that 
was  an  inseparable  part  of  himself. 

That  Robert  Steele  guarded  the  sacred  fire  of  his  inner- 
most altar  through  all  the  years  is  a  matter  of  general 
knowledge.  Other  men,  perhaps  with  an  equal  endowment 
of  original  virtue,  have  lost  their  souls  through  one  or  more 
of  the  various  forms  through  which  the  forces  of  evil  and 
of  decadence  manifest  themselves,  but  he  always  recognized 
conscience  as  the  supreme  authority  of  his  life ;  he  set  Duty 
as  the  guide  and  duty  performed  as  the  end  and  aim  of  his 
career.  In  paraphrase  of  a  familiar  quotation,  he  was  true 
to  himself,  and  it  followed,  as  the  night  the  day,  he  could 
not  then  be  false  to  any  man. 

From  the  central  fire  of  his  personal  integrity  the  genial 
light  and  warmth  of  honesty,  kindliness,  unselfishness, 
gentle  humor,  patience,  meekness,  temperance,  humility,  and 
faith  in  the  eternal  righteousness  of  God  and  Man  irradi- 
ated his  pathway  for  his  own  blessing  and  for  the  benefit  of 
all  with  whom  he  had  to  do.  There  was  something  hypnotic 
in  the  effect  he  had  upon  those  who  knew  him  even  slightly, 
and  the  same  quality  was  manifested  in  his  gift  of  oratory, 
which  had  an  effect  disproportionate  to  the  sum  of  subject- 
matter  and  skill  of  delivery,  with  full  allowance  made  for 
excellence  of  both. 

The  broadness  of  his  mental  vision  and  the  range  of 
his  active  interest  were  befitting  to  a  judge  who  was  called 
upon  to  deal  with  the  widest  variety  of  personal  and  prop- 
erty rights  and  possessions.  He  loved  the  free  air  of  God's 
great  Outdoors.  Mention  has  been  made  in  an  earlier  chap- 
ter of  his  vacation  visits  to  a  ranch  in  the  San  Luis  Valley 
and  the  benefits  he  gained  therefrom.  In  after  years  he 
made  many  camping  and  wagon  trips  into  the  mountain 
wilderness  of  various  parts  of  the  state.  In  the  valley  of 
the  White  River,  in  northwestern  Colorado,  he  maintained 


312  ROBERT  WILBUR  STEELE 

for  many  years  a  summer  retreat  from  the  cares  and  the 
toil  of  his  laborious  office.  There,  where  the  great  moun- 
tains rise  in  primitive  form  and  loveliness  as  they  came 
from  the  hands  of  the  Creator,  where  unscarred  forests 
excite  the  reverence  due  in  "God's  first  temples,"  where 
foaming  torrents  pause  in  sunny  pools  before  they  plunge 
through  thousand-mile  canons  to  a  distant  western  sea,  he 
tuned  his  spirit  to  the  harmony  of  simplicity  and  vastness 
in  the  primeval  wilderness  and  in  sincere  humility  recog- 
nized the  spirit  of  that  harmony  as  his  own. 

He  loved  the  trees  and  the  beautiful  flowers  that  cover 
the  ungardened  meadows  of  those  remote  highlands ;  he 
loved  the  birds  that  course  through  the  untainted  air  and 
build  their  nests  where  none  may  see  or  make  afraid ;  he 
loved  the  wild,  shy  beasts  that  live  on  the  wide  upper  pas- 
tures, that  shelter  themselves  in  the  groves  of  aspen  and 
spruce,  or  that  lurk  in  the  willow  thickets  along  the  moun- 
tain streams.  He  did  not  care  for  hunting,  but  he  liked  to 
fish  and  to  smoke,  soothing  the  demons  of  restlessness  with 
subconscious  activities,  and  devoting  his  major  powers  to 
an  infinitely  more  important  task,  forever  excluded  from  the 
experiences  of  those  that  seek  mental  refreshment  only  in 
convention  crowds  of  great  cities  or  upon  the  summer 
piazzas  of  resort  hotels. 

"If  the  chosen   soul   could   never  be   alone 
In  deep  mid-silence,  open-doored  to  God, 
No  greatness  ever  had  been  dreamed  or  done; 
Among  dull  hearts  a  prophet  never  grew; 
The  nurse  of  full-grown  souls  is  Solitude." 

From  the  "little  brothers"  of  the  wilderness  Robert 
Steele  transferred  his  kindly  thought  and  care  to  the  animals 
of  the  cities.  His  part  in  the  anti-docking  laws  has  been 
mentioned.  Denver's  traffic  squad  was  inaugurated  when 
Justice  Steele,  looking  out  of  the  window  of  the  Supreme 
Court  room  in  the  capitol  building,  saw  the  horses  slipping 


THE    MAN    WHOM    THE    PEOPLE    LOVED  313 

and  straining  on  the  icy  pavement  of  Colfax  avenue  and 
requisitioned  the  services  of  a  policeman  to  direct  them  to 
a  safer  and  an  easier  ascent.  Two  badges  Justice  Steele 
wore,  and  only  two.  One  was  that  of  the  Loyal  Legion 
which  indicated  the  honorable  service  of  his  father  as  an 
officer  of  the  cause  of  freedom  and  union  in  the  Civil  War, 
and  his  own  willingness  for  patriotic  service  in  the  measure 
of  duty  in  peace  or  in  war.  The  other  was  that  which 
commissioned  him  as  a  humane  officer  to  intervene  in  the 
name  of  the  state  for  the  protection  of  animals  abused  or 
neglected. 

But  with  all  his  interest  in  the  world  of  Nature,  Robert 
Steele's  chief  concern  was  with  the  world  of  man.  He  loved 
the  wilderness,  but  he  devoted  his  life  to  making  the  world 
a  better  place  to  live  in  and  to  helping  those  that  needed  his 
help.  His  was  not  the  hermit's  spirit,  seeking  the  salvation 
of  a  miserly  soul  by  withdrawal  from  the  scene  of  early 
troubles  and  temptations,  but  he  shared  as  best  he  might  the 
burdens  of  the  common  people  in  the  common  ways  of  life, 
and  gave  himself  freely  to  service  in  the  place  and  the  man- 
ner in  which  he  could  do  the  most  good. 

He  loved  the  children.  He  liked  to  play  with  the  little 
ones  of  his  own  household,  to  help  them  with  their  studies, 
to  share  their  confidences,  to  form  their  ideals,  to  comfort 
them  in  their  troubles  and  to  help  them  in  their  difficulties. 
His  "juvenile  field  day"  in  the  County  Court  showed  how 
his  fatherly  interest  was  extended  to  the  fatherless. 

The  Steele  Hospital,  named  in  honor  of  his  father, 
directed  his  attention  particularly  toward  that  branch  of 
public  beneficence ;  and  from  time  to  time  he  gave  substan- 
tial proof  of  his  interest  in  that  work. 

He  was  much  interested  in  educational  matters  and 
recognized  fully  their  importance  in  the  scheme  of  civic  duty 
and  opportunity,  though  the  labors  of  a  diverse  career  gave 


314  ROBERT    WILBUR    STEELE 

him  but  little  opportunity  for  activity  in  educational  lines. 
His  eminence  in  legal  learning  brought  to  him  the  well- 
deserved  recognition  of  a  master's  degree  from  Center  Col- 
lege, alma  mater  of  Doctor  Steele,  and  Denver  University 
later  added  a  doctor's  degree  in  laws.  As  a  member  of  the 
University  Club  he  found  in  its  circle  his  favorite  means  of 
social  enjoyment  and  relaxation. 

He  was  no  respecter  of  persons  along  the  lines  of 
wealth  and  station,  and  this  was  true  of  his  personal  regard 
as  well  as  of  his  official  attitude  and  action.  He  was  quick 
to  recognize  worth  and  nobility,  of  character  and  of  intel- 
lect, and  this  recognition  was  as  promptly  and  as  cordially 
given  in  the  log  cabins  of  White  River  or  to  the  man  on  the 
sidewalk,  as  to  his  associates  of  the  club  parlor  or  of  his 
chamber  at  the  capitol.  Men  invariably  accorded  to  him 
the  respect  he  merited,  but  he  never  claimed  their  tribute  to 
his  moral  or  mental  worth.  Probably  he  never  thought  of 
any  such  thing. 

He  had  a  very  high  regard  for  the  authority  he  exer- 
cised, and  a  very  sincere  humility  for  himself.  He  very 
scrupulously  avoided  any  action  or  appearance  that  was 
beneath  the  dignity  of  a  justice  of  the  Supreme  Court.  He 
refused  absolutely  to  be  drawn  into  any  scheme  to  make  his 
place  or  his  dignity  an  appanage  of  interest  or  ambition. 
He  never  advertised  himself;  he  refused  to  advertise  others. 
He  shunned  publicity  as  earnestly  as  many  seek  after  it, 
and,  though  he  had  exceptional  ability  as  a  speaker,  he 
seldom  used  that  gift  in  later  years  lest  his  appearance 
might  be  misconstrued.  He  would  not  seek  his  renomina- 
tion.  He  declined  to  take  part  in  the  campaign  by  which 
he  was  elected  to  the  Supreme  Court.  He  excused  himself 
from  marrying  those  persons  who  sought  display  through 
his  services  because  he  was  a  justice  of  the  Supreme  Court, 
but  he  accorded  that  distinction  to  a  servant  of  his  own 


THE    MAN    WHOM    THE    PEOPLE    LOVED  315 

household  who  had  earned  his  respect  by  years  of  faithful 
service. 

He  was  scrupulously  honest  and  honorable  in  small 
matters  as  well  as  large,  not  according  to  the  easy  letters 
of  the  law  and  of  social  custom,  but  according  to  the  fault- 
less guiding  of  an  inner  sense.  He  was  temperate,  walking 
always  in  the  light  of  that  reason  that  despises  intemperance 
in  thought,  in  word  and  in  action  as  a  folly  even  worse  than 
a  crime.  He  was  pure  in  thought,  in  word  and  in  deed. 
He  was  brave  under  circumstances  that  would  have  tried 
the  courage  of  any  man.  He  was  calm  when  passionate 
anger  would  appear  to  be  inevitable.  He  was  kind  and 
considerate  even  toward  those  to  whom  it  was  his  duty  to 
measure  punishment,  and  also  toward  those  whom  in  the 
line  of  his  duty  he  strenuously  combatted  and  steadfastly 
opposed. 

Such  are  the  words  and  phrases,  not  of  empty  eulogy 
or  lavish  encomium,  but  of  the  sober  judgment  of  the  men 
of  his  own  day  and  of  his  personal  acquaintance,  the  pains- 
taking portraiture  for  the  benefit  of  the  men  of  other  times 
and  of  other  states  of  one  of  whom  it  may  be  said  in  sober 
truth  and  exactitude : 

"None  knew  him  but  to  love  him, 
None  named  him  but  to  praise." 

To  the  young  men  of  Colorado,  and  especially  to  the 
young  lawyers  of  the  Denver  bar.  Judge  Steele  was  a  model, 
an  example,  an  inspiration,  a  friend  and  helper.  He  had 
a  high  sense  of  the  ethics  and  the  responsibilities  of  the 
legal  profession,  and  scrupulously  upheld  its  honor  both  as 
an  attorney  and  a  judge.  But  he  also  had  a  most  kindly 
interest  in  and  regard  for  the  young  men  around  him  and 
he  always  did  whatever  he  could  to  help  them  along  the 
path  he  had  pursued.  The  beautifully  illuminated  seal 
upon  the  certificate  issued  upon  admission  to  the  bar  is  a 


3l6  ROBERT  WILBUR  STEELE 

mark  of  his  consideration,  for  he  arranged  its  colors  with 
his  own  hand,  thinking  that  "the  young  men  ought  to  have 
something  better  than  a  plain  seal  in  black  and  white." 

His  interest  in  them  they  returned  with  something 
warmer  and  more  personal  than  the  respect  due  to  an  older 
and  wiser  man,  with  something  more  affectionate  than  the 
honor  paid  to  the  judge  who  was  eminently  successful  in 
the  profession  they  had  chosen  for  their  own.  They  loved 
him  because  he  appealed  to  the  best  that  was  in  them,  as 
men  and  as  Americans.  He  had  faith  in  them,  as  he  had 
faith  in  the  nation  to  which  he  gave  the  unstinted  measure 
of  his  service  and  devotion. 

Patriotism  and  love  of  humanity  were  the  guiding 
stars  of  his  career — not  rival  and  inconsistent  objects  of  his 
regard,  but  harmonious  parts  of  a  resolute  purpose.  To 
those  high  ideals  his  life  was  consecrated,  not  in  the  formal- 
ism of  a  conscious  statement,  but  rather  in  the  expression  of 
a  lifetime  of  loyalty  and  truth.  As  in  the  County  Court  he 
had  guarded  the  interests  of  the  widows  and  the  orphans, 
so  in  the  higher  tribunal  he  defended  the  inheritance  of 
liberty.  The  citizens  of  the  republic  were  his  wards ;  the 
usurpers  of  the  people's  rights  were  his  adversaries;  free- 
dom was  a  sacred  trust  committed  to  his  keeping;  and  he 
recognized  no  other  treason  so  vile  as  that  of  the  public 
official,  in  legislative,  executive  or  judicial  position,  who 
would  use  the  power  entrusted  to  him  for  the  people's  wel- 
fare to  betray  their  trust. 

He  held  ever  a  supreme  faith  in  the  American  republic ;. 
a  glory  in  its  historic  achievements;  a  pride  in  its  wealth, 
its  resources,  its  strength,  its  prosperity,  and  in  all  the  mag- 
nificent accomplishments  of  its  civilization.  He  felt  a 
steadfast  confidence  in  its  future,  believing  that  through  all 
its  difficulties  and  dangers  things  would  come  out  right  in 


THE    MAN    WHOM    THE    PEOPLE    LOVED  317 

the  end,  because  he  believed  in  the  people,  in  their  patriot- 
ism and  in  their  love  of  truth  and  justice. 

Through  the  distractions  and  the  temptations  of  an 
age  when  the  conditions  in  state  and  nation  seemed  to  appeal 
as  never  before  to  the  selfishness,  to  the  avarice  and  to  the 
ambition  of  men's  natures,  Robert  Steele  kept  faith  with  the 
people  and  with  himself.  He  did  his  full  part  to  hand  on 
to  Americans  of  the  future  the  full  measure  of  the  inherit- 
ance of  freedom  with  which  he  had  been  endowed ;  and  he 
never  doubted  that  there  would  always  be  men  of  his  own 
mold,  who  would  carry  forward  his  work  as  he  had  sus- 
tained the  work  of  others,  and  that,  amid  the  struggle  for 
wealth  and  the  strife  of  selfish  ambition,  there  would  always 
be  those  who  would  resolutely  pursue  the  Higher  Way,  and 
who,  guided  by  Reason  and  enlightened  by  Truth,  would 
strive,  fearlessly  and  unfailingly,  according  to  the  full 
measure  of  their  powers  and  opportunities,  for  Liberty  and 
Justice  and  Humanity. 


INDEX 

PAGE 

Adams,  Gov.  Alva 18,  73,  75,  88,  91,  218,  219,  222,  231,  283 

Agriculture     20,     23 

Americanism,   fundamental   principle 273 

— new    16 

Arata  riot 20 

Arnold,  Mortimer 43 

Aspen    19 

Assembly,   general,   resolutions 284,  285 

A.  T.  &  S.  F.  Ry 22,  52,     87 

Australian  ballot   9,  60,  278 

Baker,  Prest.  Jas.  H 42,  44,  301 

Bailey,  Judge  Geo.  W 266,  269 

Bailey,  Judge   Morton   S 269,  276,  277 

Bank  failures,  1893 64 

Bartels,  G.  C 108 

Bell,  Ezra  M.,  case 81 

"Big  Mitt"   28,  278 

Bland  vs.  People 265 

Bradford,  Mrs.  Mary  C.  C 96,  293 

Brown,  Mrs.  J.  S 43 

Buchtel,  Gov.  Henry  A 91 

Bucknum  case  7i 

Builders,  The   49 

Campbell,  Judge  John 259,  265,  268,  277,  286 

Cassiday  case   227,  276,  278 

Caswell,  Judge  Chas.  F 269 

Center  College    31,  314 

Chaffee,  Jerome  B 92 

Cities,  government  of 226,  228 

Civil  war   33,     34 

Clayton  will  case 262 

Clear  Creek  miners 21 

Cleveland,  O.,  Leader 113 

Coal  mining  20,     21 

Colorado,  peaceful  revolution 9,     10 

— population,  increase  and  change 20 

— railroads    22,     23 

— resources  20 

— soldiers'  memorial    98 

Columbian  university    46 

Commission  form  city  government 9,  14,  235,  236,  237 

Conejos  county  machine 28 

Contempt,    constructive 162,  163,  276 

— crime  against  courts 163 

— punishment  not  personal  right  of  judge 163 


320  INDEX 

PAGE 

Cooper  estate 79 

Corporations,   public  utility 27 

Costilla  county  machine 28 

Cottonwood  tree  eulogized 99,   100 

Court  common  people 67,  281 

Court  of  last  resort 167,  272,  278 

Creede 19 

Creel,  George 306 

Cripple  Creek  miners 21 

— strike   104 

C.  S.  &  I.  Ry.  vs.  Nichols 270 

Cunningham,  Judge  L.  W 300 

Daily  case   78 

Dayton,  Ohio 31,  32,  33,  34,  35,  36,     37 

Democratic  state  convention,   1910 282 

Denver,   auditorium    96,  266,  267,  268,  269,  282 

— Bar  Association  memorial 286 

—census,   1870 38 

— city  and  county 230,  232 

— city  government   226 

— corporations 27,  218 

— democracy  of 68 

— first  railroad    37 

—high  school   42,  43,  289,  290 

— Republican    61 

— schools 41 

—Tammany  27,  219,  278 

— Times    61 

— University    40,  314 

Denver  vs.  Hallett 266 

Denver  vs.  Hubbard 262 

Detroit,  Mich.,  Free  Press 112 

Dickerson,  Mrs.  Mary  Peabody 43 

Direct  elections,  U.  S.  senators IS 

Direct  primaries 9,  14,  278 

Dixon,  Judge  N.  Walter 258 

Docking  horses,  cruelty 82,  265 

Dodge,  Col.  D.  C 22 

Dodge,  Mrs.  D.  C 42,  289 

Duluth,   Minn.,   Herald 113 

Dunlavy,  John  C 33 

Dunmire  case  55,     57 

Eight  hour  law 10,  255 

Emblems  upon  ballot 25 

Evans,  Gov.  John 22,  92,  291 

Evans,   William   G 291 

Fenlon,  Thos.  P 301 

Fishermen's  rights  269 

Gabbert,  Judge  Wm.  M 117,  229,  259,  268,  269,  275,  277 

— supplementarj'  opinion  in  Moyer  case 117 

Garfield,  James  R 95 


INDEX  3^1 

PAGE 

George's  Weekly   l^J 

Gilpin  county  miners > •     21 

Goddard,  Judge  Luther  M 253,  266,  269 

Gold,   Semi-centennial    ^' 

Good  Fellowship  Dinner 91 

Gove,  Prof.   Aaron *2 

Grant,  Gov.  Jas.  B. J° 

Greeley,  colonists  arrive ^° 

Green  vs.  Weller •  •  •   238 

Guntcr,  Judge  Julius  C 231,  266,  275,  277 

Gurley,  Boyd  F 304 

Hale,    Gen.   Irving *^ 

Hartman  vs.  Bailey 26V 

Harris  case    270 

Hawkins,  Horace   N -■■■  2^5 

Headless  ballot 9,  14,  278 

Helm,  Judge  J.  C 96,  269 

High  prerogative  writs •''">  ^'^ 

Hill,  Senator  N.  P •  •  •  -24,     57 

Hill,  Judge  William  A 269,  277,  304 

Holt,  William 292 

Horan   case    • 2 

Huerfano  county  machine -° 

—riot V   97^ 

Initiative    9,  275 

Jackson  dinner   ■  •  •  •  •  •  •  •   J'^ 

Johnson  case 227,  231,  232,  233,  235,  237,  245,  277 

Judge  Johnson's  case 270 

Knapp,   George  L ^"2 

L'Abbe  case  '^^^ 

La  Junta ■  ■      ^* 

Lamar,  town  founded ^3,     54 

Las  Animas  county  machine ~° 

Lathrop,  Miss  Mary  F 297 

Leadville,  miners  21 

—strike    20 

— street  mining  cases •   257 

Lindsey,  Judge  Ben  B »+.  »5,  298 

Loyal  Legion   313 

McCormick,  Dr.  S.  B 298 

McKee,  Chas.  J.,  letter •  •  •     36 

Mclntire,   Governor    '  1>     ^2 

Machine,  definition   J° 

— makers  of  the •   ^\° 

-political 18,  23,  27,  28,  29,  105,  106,  218,  223 

Mack,  Christopher,  case ^^ 


Manitou  townsite  case. 


263 


Manufacturing    •  •  •  •  •  •  •  •  -" 

Maxwell,  Judge  John  H 231,266,268,  269 

Mills  vs.  Newell in  5^5 

Miners'   eight  hour   law *">  ^^^ 


322  INDEX 

PAGE 

Mining,  coal    21 

—gold    18,  21 

— kings   21 

— silver    18,  19 

Morgan  case   255 

Moyer  case,  dissenting  opinion Ill,  119 

Governor  Peabody's  proclamation 121 

Alleged  right  arbitrary  arrest 149 

Attorney  General  Bates  criticised 137 

Caleb  Gushing  habeas  corpus  decision 127 

Case  Bollman  and  Swartout 125,  126 

— ex   parte   Benedict 136 

— ex  parte  Milligan 140 

— in  re  Kemp 138 

— in  re  Moore 139 

— Johnson  vs.  Duncan 126 

— Johnson  vs.  Jones 145 

— McCall  vs.  McDovsrell 139 

Congress  refused  suspension  writ 131,  134 

— suspended    privilege   writ 136 

Congressional  debate,  1807 128 

—February,   1808    131 

Constitution  not  changeable 155 

Constitutional  privileges  not  separable 154 

— provisions,  Colorado  and  U.  S 135 

Court's  opinion  discussed 144 

Decision   Chief  Justice  Taney 135 

Distinction  suspension  writ  and  martial  law 124 

Facts  of  arrest 122 

Facts  of  the  petition 144 

Governor's  civil  and  military  power 148 

— act  violated  bill  of  rights 144 

Indiana  cases    139 

John    Merryman   case 134 

Judge  David  Davis'  opinion 141,  142 

Judge  Hall's  decision 137 

Justice  Breese's  opinion 145 

Martial   law    140 

Powers  of  governor 146 

Proclamation  of  governor 121 

Reasonable  construction  laws 147 

Respondent's  reply 123' 

War  power  of  governor 151 

Moyer  case,  comments  on  dissenting  opinion.    112,  113,  114,  115,  116 

— Judge  Gabbert's  supplementary  opinion 117 

Musser,  Judge  Geo.  W .' 269 

Nagel,   Frank   G 300 

New  Americanism   16 

Newspapers,  business  success  requires  independence 160 

— constitutional   liberties  should  not  be  abridged 161 

— effort  control  bv  business  interests 160 


INDEX  3^3 

PAGE 

Newspapers — Continued. 

— effort  subjugate  to  machine  politics 159 

— expensive  equipment   "» 

— how  purchaseable •  • 1°^ 

— not  open  medium  expression  all  opinions 159 

News,  Rocky  Mountain 108,  113,  157 

New  York  Evening  Post 11^ 

O'Donnell,  T.  J 301 

O'Ryan,  Father  Wm 3UU 

Oklahoma   constitution    ^^ 

Overton,  Miss  (see  Mrs.  J.  S.  Brown). 

Palmer,  Gen.  Wm.  J •  •  •     22 

Panic  of  1893 63,     64 

Patterson,  Thos.   M 158,  168,  275,  293 

Patterson  case    157,  164,  165,  275 

Alexander  Hamilton's  argument 200 

Alleged  waiver  jurisdiction 177 

Andrew  Hamilton's  defense 198 

Averments  of  respondent 169 

Case  against  Horace  Greeley 204 

—Hughes  vs.  The  People 196 

— in  re  Moore  et  al 206,  207 

— in   re  Pryor 216 

— John  Peter  Zenger 198 

—King  vs.  Root 204 

— MuUin  vs.  People 198 

—Myers  vs.  The  State 185 

— Neal  vs.  State 216 

— Negley  vs.   Farrow 205 

— People  vs.  Storey 215 

—People  vs.  Wyatt 172,  173,  207 

— reported  46th  Kansas 175 

— State  ex  rel.  Ashbaugh 182 

— State  vs.  Dunham 190 

— State  vs.  Frew 205 

— Stuart  vs.  The  People 177 

— Telegram  newspaper  vs.  Commonwealth 183 

Central  Law  Journal,  discussion  Chadwick  case 181,  216 

Claim  truth  immaterial 209 

Conspiracy  charged   ■ .  • |65 

Cooley  on  constitutional   limitations 179 

Court  assumed  new  power 176,   186 

Decision  in  Missouri  case ••  •   ^12 

— in  Stapleton  case 175,  207 

—Justice  Helm  in  People  vs.  Green 191 

— in  South  Dakota  case 189 

Declarations  of  majority  opinion 171 

Denial   legislative  power -08 

Dissenting  opinion  Justice  Steele 168 

Doctrine  repudiated  by  authorities 213 

Doctrine  "pending  case"  mere  fiction 186 


324  INDEX 

PAGE 

Patterson  Case — Continued. 

Essential  power  of  court 191 

Harry  Croswell  convicted  of  libel 199 

Initiatory  affidavit  required 172 

Judge  Thomas,  "law  of  necessity" 193 

— newspaper  contempts 213 

Justice   Kent's   opinion 203 

Lawmaking  power  people  supreme 167 

Lord  Erskine,  free  speech  and  fundamental  rights 192 

Lucian's  anecdote,  Jupiter  and  thunder 192 

Majority  opinion    summarized 168 

Mistakes  of  majoritj-  opinion 215,  217 

Opinion  Chief  Justice  Sharswood 181,  215 

—Justice  Helm    173,  17+ 

Outgrowth   political   controversies 165 

Power  not  essential  to  federal  judges 193 

Proof  of  charges  offered 166 

Respondent's  reply 169 

Seymour  D.  Thompson,  review  Stapleton  case 179,  216 

Sturoc's  case   183 

Truth  is  justification 211 

Wharton  on  Criminal  Pleading  and  Jurisprudence 184 

Peabody,   Gov.  Jas.  H 218,  219,  222,  231,  255 

Peaceful  revolution   9 

Pisko,   Mrs.   Sarah   Eppstein 43 

Pittsburgh,   Pa.,   Dispatch 112 

Post,    Louis   F 299 

Public  utility  corporations 27 

Pueblo  district  court 258 

— political  machine   28 

Railroads  20,  22,  23,  37 

Recall 9,  276 

— of  judges   167 

Referendum    9,  275 

Revolution,  peaceful   9 

Rico  19 

Right  of  self-government 14,  226,  229,  234,  279 

Riots,  Arata 20 

— Huerfano  county 20 

Rocky  Ford  52,  54 

Rush  amendment  (see  Twentieth  article). 

Ryan   case    260 , 

St.  Louis  convention,  1896 72 

Sewall,  Dr.  Henry,  quoted 39 

Shaf roth,  Gov.  John  F 284,  292 

Shiwagri,  Joe,  naturalization 77 

Silver  Cliff   19 

— demonetization    19 

—downfall    18,  19,  64,  93 

— mining    18,  19 

—Republicans    24,  26,  89,  108 


INDEX  3^5 

PAGE 

Sloan's  Lake   52 

Smelting   21 

Smith,  Miss  N.  O.  (see  Mrs.  D.  C.  Dodge). 

Sons  of  Colorado 99 

Sours   case 227,  229,  231,  233,  237,  238,  246,  247,  248,  250,  277,  278 

Steele  &  Malone 51,  54,  57,  65 

Steele  Block 54 

Steele,  Harriet  D 37 

Steele,  Dr.  Henry  K 31,  32,  34,  36,  37,  38,  39,  40,  41 

Steele,  Jane  G 51 

Steele,  Mary  F 37 

Steele  Memorial  Hospital ■*!.  313 

Steele   ranch    56 

Steele,  Robert  W. 

Anecdote,  anti-toxin  treatment 86 

—fire    35 

— land  office 57 


— marrymg 


76 


— poetic  quotation 86 

— political  meeting 36 


— railway  trip 


87 


— sold  newspapers   35 

— volunteered  for  war 88 

— Washington  boarding  house 4-7 

Admitted  to  bar +7 

Bankruptcy  law  written 65 

Birth   ...." 31 

County  committee  chairman 57,  58,  59 

Chief  justice   269 

Children 51,  313 

Choice  of  profession +6 

Columbian  university  student +6 

Conservative  force  16 

Contemporary  opinion,  his  work  and  character 282 

County  court,   clerk +8,  51 

—judge  67,  68,  75,  287,  291,  316 

— judge  appointed   67 

Death    272 

District  attorney,  elected 60 

— nominated  59 

Divorce  eases  75,  256 

Early  emplovment   ^^ 

Father's  influence  39 

Genealogy    32 

Grandparents    31 

Harmonious  member  court 271 

High  school  42,  43,  44,  45,  290 

— oration   ''^5 

Home  built    • 54 

Humane  cases 81,  265,  312 

— officer    313 


326  INDEX 

PAGE 

Steele,  Robert  W. — Continued. 

Juvenile  field  day 82,  83,  84,  85,  313 

Library   44 

Loneliness  high   position '. 281 

Losses  in  panic,  1893 65 

Love  of  animals 312 

— nature   311 

— outdoor  life 42,  312 

Marriage    51 

Memorial  window  285 

Mistake  admitted  264 

Namesake  32 

Naturalization  cases    77 

Oklahoma  constitution 88 

Opportunities   of  youth 47,  50 

Parents 31 

Partnership    51 

Personality    308 

Probate   cases    79,  287,  291 

Prophet  New  Era 11 

Ranch  taken  up 56 

Re-election  assured   272 

Removed  to   Colorado 37,  38 

Reply  to  critics 62 

Republican  partv  left 73 

School     .' 35,  41 

Sense  of  justice 43 

Speech,  Garfield  dinner 95 

— Gold  semi-centennial    97 

— Good  fellowship  dinner 91 

— Jackson  dinner   89 

— Russian  refugees    96 

— Soldiers'  monument   98 

—Sons  of  Colorado 99 

Supreme  court  judge 12,  16,  17,  29,  30,  107,  219,  255 

— nominated     108 

— renominated  283 

Technicalities  opposed  229,  237 

Trips  to  Cuba  and  California 87 

University  Club   314 

Vacations,  San  Luis  Vallev 42 

—White  River .' 302,  311 

Victory  of  his  principles 274 

Woodbury  prize  winner 43 

Steele,  Robert  W.,  Jr 51,  297,  302 

Steele,  Robert  W.,  school  building 288 

Steele,  Robert  W.,  of  Dayton,  O .' 32 

Stevens,  Mrs.  Flora  L.  Bishop 43 

Stevens,  L  N 299 

Stevick,  Guy  L 87,  297 

Strike,  Leadville 20,  104,  107 


INDEX  327 

PAGE 

Supreme  court,  citadel  conservation 13,  235 

Tammany,  Denver 27,  219,  278 

Tanner,  Rev.  A.  A.,  D.D 289 

Teller,  Henry  M 24,  25,  71,  72,  73 

Telluride  miners 21,  104 

Thomas,  Charles  S 91,  308 

Thomas,  Theodore  H 58 

Thompson,  R.  D 59,  292 

Too!  case  220,  221,  224,  225,  277 

Tritch  will  case 80 

Turner  Hall  Republicans 58 

Twentieth  article  constitution, 

14,  228,  231,  233,  245,  246,  248,  249,  250,  251,  252,  253,  266,  277 

Union  bank   41 

Union  G.  M.  Co.  vs.  Crawford 261 

United  States  senators  direct  election 15 

Uzzell  vs.  Anderson 227 

Van  Horn,  mayor  of  Denver 86 

Waite,  Davis  H 24,  70,  71 

Wells,  Judge  E.  T 46 

White  River 311,  314 

White,  Judge  S.  Harrison 269 

Williams,  Dr 41 

Wilson,  Judge  D.  P.,  quoted 47 

Wolcott,   Edward  0 24,  25,  26,  71,  72 

Woodbury,  Frank  S 43,  291 

Woodbury  prize   43 

Woodbury,  R.  W 43 


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